New York State Court of Claims

New York State Court of Claims

JUSTUS v. THE STATE OF NEW YORK, #2009-009-009, Claim No. 108499, Motion No. M-75396


Defendant’s motion for summary judgment dismissing this medical malpractice claim by an inmate in State custody was granted. The Court found that all allegations of medical malpractice involved medical treatment provided by an outside physician at an outside medical facility.

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:
BY: Lisa Anne Proskin, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
March 30, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion seeking an order of summary judgment dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, Affidavit of Tracey Gecewicz, with Schedules and Exhibits 1,2,3

Affirmation in Opposition, Affidavit of Kevin Justus, Supplemental Expert Response


Correspondence dated December 4, 2008 from Edward F. McArdle, Esq., Assistant Attorney General, with Attachments 7

In his filed claim, claimant seeks damages allegedly resulting from medical malpractice and/or negligence for medical treatment provided to him at a time when he was an inmate incarcerated under the care and custody of the Department of Correctional Services (DOCS). These allegations of malpractice and/or negligence are related to medical treatment that claimant received, beginning in March, 2001 “for a cold, pulseless and numb foot” (see claim, par. 8). At that time, claimant was incarcerated at Watertown Correctional Facility. Subsequently, surgery was performed on May 8, 2001 by Dr. Simon Drew at Samaritan Medical Center in Watertown in an attempt to correct this medical problem. Claimant was returned to Watertown Correctional Facility following surgery, and he continued to receive medical care and treatment for this condition from DOCS medical providers until his release from custody.

Defendant had initially brought a pre-answer motion (Motion No. M-67787) to dismiss this claim, contending, among other things, that there could be no liability against the State, since the alleged acts of malpractice were performed at an outside facility by a physician who was not a State employee. By a Decision and Order dated June 15, 2004, this Court denied defendant’s motion, without prejudice, on the basis that, with regard to this contention, defendant had not established the lack of a formal employment relationship between the State and Dr. Drew, and that the claim could also be interpreted to contain allegations of medical malpractice and/or negligence pertaining to claimant’s follow-up care provided at the correctional facility[1].

Discovery has now been completed, a Note of Issue and Certificate of Readiness has been filed (May 8, 2008), and defendant now seeks summary judgment dismissing the claim, based essentially on the same grounds as previously asserted in its motion to dismiss.

Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943). On a motion for summary judgment, the Court’s function is to determine if such an issue exists, and in doing so, the Court must examine the proof in a light most favorable to the opposing party. Summary judgment may only be granted if the movant provides evidentiary proof in admissible form to demonstrate that there are no material questions of fact or demonstrate an acceptable excuse for the failure to submit such proof (Winegrad v New York Univ. Med. Center, 64 NY2d 851). Once a movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden then shifts to the opposing party which must submit evidentiary proof in admissible form sufficient to create an issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculations or expressions of hope, however, are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).

With respect to the instant claim, and this motion for summary judgment, defendant has submitted the Affidavit of Tracey Gecewicz, the Assistant Director of Health Services for the New York State Department of Correctional Services. In this Affidavit, Ms. Gecewicz states that she has examined records maintained by DOCS Health Services related to physicians and health care providers, and finds no record of any employment or contractual relationship between DOCS and Dr. Simon Drew. Additionally, Ms. Gecewicz found no record of any contract between DOCS and Samaritan Medical Center with regard to the provision of health care services.

The Court has reviewed claimant’s response to this motion (Items 4,5,6), as well as claimant’s Verified Bill of Particulars and his responses to defendant’s discovery demands (Exhibits D and F to Items 1,2,3). Based on this review, the Court finds no indication that this claim of medical malpractice and/or negligence is based upon the medical care or treatment that claimant received at Watertown Correctional Facility or any other correctional facility. Rather, it is apparent that this claim is based solely upon allegations that the surgical procedure performed by Dr. Drew at Samaritan Medical Center on May 8, 2001 was negligently performed. There are no allegations of medical malpractice and/or negligence prior to this procedure (such as a mis-diagnosis or delay in diagnosis), and although claimant has alleged that he has continued to receive follow-up care for the condition allegedly caused by this malpractice, there are no allegations that such treatment has been negligently or improperly performed.

As stated by this Court in its Decision and Order to defendant’s original motion to dismiss, the State has a well-established duty to provide reasonable and adequate medical care to those inmates incarcerated in its facilities (Rivers v State of New York, 159 AD2d 788, lv denied 76 NY2d 701). However, it is also established that when a prison inmate receives medical treatment from an outside physician at an outside medical facility, where there is no contractual relationship between either the physician or the facility with the State, any malpractice which occurs during that treatment does not give rise to a claim against the State (Rivers v State of New York, supra; Williams v State of New York, 164 Misc 2d 783).

Claimant contends that he had absolutely no input as to the medical care and treatment provided to him, since he was an inmate, and the defendant had assumed and directed all such medical care. Claimant therefore argues that the State should be liable and responsible for the care provided, since the State, and not claimant, made all decisions in scheduling his surgical procedure. As set forth above, however, where the State does not exercise any control over the treatment provided to claimant, there can be no State liability.

Based upon the foregoing, therefore, it is

ORDERED, that Motion No. M-75396 is hereby GRANTED; and it is further

ORDERED, that Claim No. 108499 is hereby DISMISSED.

March 30, 2009
Syracuse, New York

Judge of the Court of Claims

[1]. Justus v State of New York, Ct Cl, June 15, 2004, Midey, J., Claim No. 108499, Motion No. M-67787, [UID #2004-009-035]). Unpublished decisions and selected orders of the Court of Claims are available via the Internet at