New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2008-044-507, Claim No. 109512, Motion No. M-74386


Claimant’ motion to reargue Court’s denial of his summary judgment motion denied. Claimant failed to show that the Court misapprehended the facts or misapplied the law when it determined that an expert affidavit was necessary to establish causation in medical negligence claim.

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: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 13, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves for reargument of this Court’s denial of his prior motion for partial summary judgment. Defendant State of New York (defendant) opposes the motion. Claimant replies.

The portion of the underlying claim for which claimant sought summary judgment alleged that claimant received certain prescription medications only after some delay. Claimant had previously made a motion for summary judgment on the same issues, which was denied by the Court based upon claimant's 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]).

In the partial summary judgment motion for which claimant now seeks reargument (Green v State of New York, Ct Cl, Dec. 20, 2007, Schaewe, J., Claim No. 109512, Motion No. M-73700 [UID # 2007-044-586), the Court denied claimant's motion on the ground that there existed questions of fact precluding summary judgment, as well as for failure to provide an expert affidavit. The medical records provided by claimant appeared to be incomplete, leading to an inference that there may have been additional orders regarding the medication. The medical records also indicated that there may have been an order for further evaluation, raising the issue that the prescriptions may have been withheld pending that evaluation.

In this motion to reargue, claimant now argues that his ailments were sufficiently commonplace that an expert's affidavit would not be necessary. Claimant totally ignores the issue that questions of fact remain outstanding. Claimant cites to the case of France v State of New York (132 Misc 2d 1031 [1986]) for the apparent proposition that defendant may be liable for its failure to provide skin cream to an inmate pursuant to a medical prescription. However, claimant completely overlooks the fact that the decision in that case was rendered pursuant to a trial, in which existing questions of fact would have been resolved. Obviously, that forms a crucial distinction between that case and the instant claim.

Claimant has not established in this motion that the Court misapplied any controlling principle of law. Further, claimant has failed to establish that the Court misapprehended or overlooked any relevant facts. Consequently, reargument is not available (CPLR 2221[d] [2]; see generally Foley v Roche, 68 AD2d 558, 567-568 [1979]), and claimant’s Motion No.

M-74386 for reargument is denied.

February 13, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Motion for Reargument filed on January 7, 2008; Affidavit of Shawn Green sworn to on January 1, 2008, and attached exhibits.

2) Affirmation in Opposition of James E. Shoemaker, Assistant Attorney General, dated January 17, 2008.

3) Reply of Shawn Green sworn to on January 22, 2008.

Filed papers: Claim filed on June 21, 2004; Verified Answer filed on July 23, 2004; Supplemental Claim filed on July 19, 2004; Verified Answer to Supplemental Claim filed on August 16, 2004.