New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2007-044-586, Claim No. 109512, Motion No. M-73700


Court denied claimant’s second motion for partial summary judgment in medical negligence issue due to existence of questions of fact and lack of expert affidavit necessary to establish causation.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 20, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, filed a claim alleging, among other things, that there was a delay in receiving his prescription medications upon his transfer to Southport Correctional Facility (Southport). Defendant State of New York (defendant) answered, and asserted various affirmative defenses. Claimant thereafter filed a supplemental claim asserting two bailment causes of action. Defendant served and filed an answer to the supplemental claim.[1] Claimant’s previous motion for partial summary judgment (Motion No. M-70591) was denied based upon his failure both to submit admissible evidence in the form of certified medical records and to provide an expert affidavit (Green v State of New York, Ct Cl, Sept. 26, 2005, Lebous, J., Claim No. 109512, Motion No. M-70591 [UID # 2005-019-572]). Claimant now moves again for partial summary judgment on the issue of liability. Defendant opposes the motion. Claimant replies. Claimant, as the proponent of a summary judgment motion, must set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., supra).

“Medical negligence, in essence, alleges negligent omissions or commissions by State caregivers which can be readily determined by the fact finder using common knowledge without the necessity of expert testimony. However, this theory is limited to ‘those cases where the alleged negligent act may be readily determined by the trier of the facts based on common knowledge’ ” (Carter v State of New York, Ct Cl, Patti, J., Mar. 22, 2006, Claim No. 104863, [UID # 2006-013-510], quoting Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256 [1986]). Even though a claim is properly one for medical negligence, an expert medical opinion is required as part of the claimant’s prima facie case in those instances “[w]here medical issues are not within the ordinary experience and knowledge of lay persons” (Wells v State of New York, 228 AD2d 581, 582 [1996], lv denied 88 NY2d 814 [1996]; see Tatta v State of New York, 19 AD3d 817, 818 [2005], lv denied 5 NY3d 712 [2005]).

In his affidavit,[2] claimant states that in February 2004 he was prescribed a treatment plan which included issuance of Clotrimazole and Geri-Hydrolac 12 (Lac-hydrin Lotion). Claimant avers that upon his transfer from Green Haven Correctional Facility (Green Haven) to Southport, he turned over the medications to the transport officers. Claimant asserts that when he arrived at Southport, Nurse C. Miller withheld those two medications in violation of the Health Services Policy Manual (the Manual). Claimant states that due to the lack of medication, he experienced a foot fungus which caused “itchy and crack[ed] skin due to discontinuance of medical treatment resulting in chronic symptoms.” Claimant also states that although Dr. John Alves prescribed Eucerin cream for him on April 14, 2004, the pharmacist did not dispense the cream until May 28, 2004.

In an apparent effort to correct the deficiencies set forth in the decision on his prior motion for partial summary judgment, claimant has submitted a portion of his medical records which was certified by a registered nurse at Southport.[3] A review of the record establishes that while he was located at Green Haven, claimant was evaluated by a podiatrist, and DOCS medical personnel ordered Clotrimazole and Lac-hydrin in compliance with the treatment recommendation. When claimant arrived at Southport on April 9, 2004, he participated in a health screening and medical orientation. Nurse Miller noted that claimant had been using the Clotrimazole and Lac-hydrin on his feet and stated that “NP to evaluate for need.”[4] While claimant cites the Manual for his position that his medications should have been returned to him upon his arrival at Southport, neither party has provided the Court with a copy of the Manual. Therefore, the Court cannot determine whether Nurse Miller’s conduct was in violation of the Manual or whether it was appropriate to withhold the medications pending an evaluation to determine their continued need.

On April 14, 2004, claimant was examined by Dr. Alves who prescribed, among other medications, Eucerin cream with the notation “in shower can.”[5] There is no further discussion of Eucerin cream until the entry dated May 28, 2004 which indicated that “Eucerin was ordered by NP for in cell use - which has been delivered and for shower can (this has just been delivered to facility + 1 jar was prepared for this I/M. Will be delivered to bubble officers in AM)” (emphasis supplied). Given the reference to a nurse practitioner rather than to a physician (Dr. Alves), a reasonable inference may be drawn that there are medical record entries between April 14, 2004 and May 26, 2004[6] which are not before the Court. Further, on April 14, 2004, Dr. Alves indicated that claimant’s BS (blood sugar) should be tested twice a day, and the results reviewed in one week. Based upon that entry, it is reasonable to expect that the results would be recorded in claimant’s medical record. However, there was no documentation of the results nor any further discussion of the issue. The Court finds that there are questions of fact as to whether the Eucerin cream which was delivered on May 28, 2004 was in response to an order issued by a nurse practitioner sometime after April 14, 2004 or whether it was delivered in response to the April 14th order by Dr. Alves.

Moreover, claimant has not provided an expert affidavit to establish causation. The effect on claimant of the lack of Clotrimazole, Lac-hydrin, and/or Eucerin is beyond the ordinary experience and knowledge of a layperson (see Tatta v State of New York, supra; Wells v State of New York, supra), and therefore requires a medical opinion. Claimant’s failure to submit such an affidavit is fatal to this motion.

Based upon the existence of factual questions as well as the lack of an expert opinion, claimant has not established a prima facie case of entitlement to judgment as a matter of law. Accordingly, Motion No. M-73700 for partial summary judgment is denied.

December 20, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on July 5, 2007; Affidavit of Shawn Green sworn to on June 22, 2007, and attached Exhibits A through D.

2) Affirmation in Opposition of Geoffrey B. Rossi, AAG, dated July 31, 2007.

3) Reply of Shawn Green sworn to on August 8, 2007.

[1]. Claimant’s failure to include copies of the supplemental claim and defendant’s verified answer thereto could itself provide a basis for denial of this motion (CPLR 3212 [b]). However, this motion concerns only the delay in receiving claimant’s medications, a cause of action stated in the original claim. Accordingly, the record before the Court is “sufficiently complete,” and the Court will overlook this procedural defect (Greene v Wood, 6 AD3d 976, 977 [2004]; General Motors Acceptance Corp. v Albany Water Bd., 187 AD2d 894, 895 n [1992]).
[2]. Although claimant titles the document “Affirmation,” it is a properly executed affidavit and this Decision and Order will refer to it as such.
[3]. Notwithstanding the certification of the medical records, claimant has again failed to provide an expert affidavit (see infra, at 4).
[4]. “NP” is presumably the abbreviation for “nurse practitioner.”
[5]. Dr. Alves also prescribed Lac-hydrin to be applied daily to claimant’s feet, but there is no indication that he prescribed Clotrimazole.
[6]. Entries for May 26, 27 and 28, 2004 are contained on the same page.