New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2008-044-567, Claim No. 112759, Motion Nos. M-74851, CM-74898


Defendant’s motion for summary judgment is denied based upon the State’s failure to submit medical evidence establishing either that: claimant was not allergic to the food (“diet loaf”) served on the restricted diet imposed as a disciplinary sanction, or that claimant’s alleged illness was not caused by eating that food. Pro se claimant’s failure to set forth the medical evidence to necessary to establish causation is fatal to his cross motion for summary judgment.

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: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 1, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim alleging that being on a restricted diet pursuant to a disciplinary sentence made him sick to his stomach. Defendant State of New York (defendant) answered. Defendant now moves for summary judgment. Claimant cross-moves for summary judgment. Defendant opposes the cross motion.[1]

Claimant alleges that eating the “diet loaf” – which apparently consists of, among other things, potatoes and carrots[2] – makes him sick to his stomach. Claimant alleges that even though he informed the facility physician (J. Alves) in 2002 that the diet made him ill, medical personnel still authorized him to begin the diet on July 29, 2006 for seven days.

Defendant argues that absent a violation of the rules and regulations, its actions in conducting a disciplinary hearing and imposing a related sentence are entitled to absolute immunity. Defendant contends that because there are no entries in claimant’s medical record documenting stomach distress during the relevant time period, claimant has failed to establish any damages or injuries as a result of the penalty.

Conversely, claimant asserts that he is not challenging the administrative decision to impose the restricted diet. Rather he is alleging that he becomes ill when he eats the “diet loaf,” and should therefore be compensated. Claimant alleges that defendant was on notice of his allergy to potatoes because that allergy was documented in his ambulatory health records as early as October 10, 2004, as well as in the Southport Correctional Facility restricted diet medical log entries dated November 21, 2004 and November 22, 2004.

Defendant correctly notes that absent a violation of its own rules and regulations in conducting the hearing, or otherwise acting outside the sphere of privileged actions, the State is entitled to absolute immunity from claims for monetary damages relating to disciplinary hearings (see Arteaga v State of New York, 72 NY2d 212 [1988]). However, defendant has misunderstood claimant’s theory of liability in this claim. Claimant is clearly asserting a cause of action for either medical malpractice or medical negligence – based upon defendant’s conduct in medically authorizing a restricted diet for him in light of his alleged allergy to certain ingredients in the “diet loaf” – rather than seeking to recover for the violation of a rule or regulation within a disciplinary hearing.[3]

On this motion for summary judgment, it is defendant’s burden to establish entitlement to judgment as a matter of law by setting forth evidence from which the Court could infer either that the State was not negligent when it administered a restricted diet to claimant, or that claimant’s damages were not proximately caused by its conduct (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sims v State of New York, Ct Cl, Sept. 7, 2005, Lebous, J., Claim No. 101974 [UID # 2005-019-019]; Morene v State of New York, Ct Cl, Oct. 21, 2003, Minarik, J., Claim No. 105686 [UID # 2003-031-520]). If the movant does not meet its burden, the motion must be denied regardless of the sufficiency of the opposing papers (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Defendant has utterly failed to meet its burden on this motion for summary judgment. In support of the motion, defendant provides the determination of the Inmate Grievance Review Committee (the IGRC) concerning claimant’s grievance that the restricted diet made him sick. That determination was based upon an investigation which revealed the lack of “entries in [claimant’s] medical [files] in the recent past regarding stomach distress.” The IGRC found that claimant’s complaint was a medical issue which should be addressed with medical personnel. Defendant has neither provided medical documentation that claimant is not allergic to any of the ingredients contained in the “diet loaf” nor has it offered expert medical proof that claimant’s alleged symptoms were not caused by ingesting that food (Wood v State of New York, 45 AD3d 1198, 1198 [2007]; Duffen v State of New York, 245 AD2d 653 [1997], lv denied 91 NY2d 810 [1998]). Defendant has not met its burden of establishing entitlement to judgment as a matter of law. Accordingly, defendant’s motion for summary judgment is denied.

Claimant’s cross motion for summary judgment suffers from the same infirmity. Even if the Court accepts claimant’s allegations that eating the “diet loaf” made him sick, and that defendant had notice of his potato allergy as true, claimant has failed to provide medical evidence necessary to establish a causal relationship between ingesting the “diet loaf” and his resulting illness (see Wood v State of New York, supra; Duffen v State of New York, supra). Claimant’s cross motion is therefore denied.

Motion No. M-74851 and Cross Motion No. CM-74898 are both hereby denied in their entirety.

August 1, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on defendant’s motion and claimant’s cross motion:

1) Notice of Motion filed on April 23, 2008; Affirmation of Roberto Barbosa, Assistant Attorney General, dated April 21, 2008, and attached Exhibits A through C.

2) Claimant’s Cross Motion filed on May 2, 2008; Unsworn “Affirmation” of Johnathan Johnson dated April 23, 2008, and attached exhibits.

3) Affirmation in Opposition of Roberto Barbosa, AAG, dated May 8, 2008, and attached Exhibit A.

Filed papers: Claim filed on September 14, 2006; Verified Answer filed on September 22, 2006.

[1]. Defendant contends that the cross motion should be denied, in part, because claimant did not attach copies of the pleadings to his cross motion papers. This argument is clearly untenable, advancing form over substance, particularly given that defendant attached the pleadings to its motion for summary judgment. Because the record is “sufficiently complete”, the Court will overlook claimant’s procedural defect and address the merits of the motion (see Greene v Wood, 6 AD3d 976, 977 [2004]; General Motors Acceptance Corp. v Albany Water Bd., 187 AD2d 894, 895 n [1992]).
[2]. Although neither party has provided the Court with the precise ingredients of the “diet loaf,” at one time, the “Nutriloaf” used in the State’s correctional facilities consisted of whole wheat flour, sugar, carrots, potatoes, whole and packaged milk, and yeast (see Matter of Trammell v Coombe, 170 Misc 2d 471, 475 [1996]).
[3]. To the extent that claimant might be challenging defendant’s administrative disciplinary determination and imposition of the restrictive diet penalty, the Court notes that the appropriate recourse would have been to administratively appeal the determination and, if necessary, commence a CPLR article 78 proceeding in Supreme Court (see generally Matter of Davis v Goord, 21 AD3d 606, 609 [2005]).