New York State Court of Claims

New York State Court of Claims

FULTON v. THE STATE OF NEW YORK, #2009-015-126, Claim No. 114727, Motion No. M-75661


Claimant's motion to compel discovery and for summary judgment was denied.

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:
Alvin Fulton, Jr., Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 4, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves to compel a further response to certain demands for discovery and for summary judgment. The defendant opposes the motion on the ground that it provided an adequate response to the requested items of discovery and states that it is unable to oppose the branch of the motion seeking summary judgment because it never received the motion. Claimant alleges he suffered food poisoning after eating Vienna Sausages he purchased from the commissary at Great Meadow Correctional Facility on January 8, 2007. Claimant allegedly ate the sausages on January 10, 2007 at 5:45 p.m. and was awakened in the middle of the night with severe abdominal pains and cramps, dizziness and other symptoms. He alleges he began to experience diarrhea and vomiting on January 11, 2007 and was seen in emergency sick call on January 12, 2007 where he was treated by a physician's assistant and, thereafter, by a physician on January 17, 2007. In his affidavit submitted in support of the motion the claimant avers that a colonoscopy performed some five months after the incident revealed H-Pylori, a bacteria which "can remain in claimant's colon for years and requires periodic antibiotic follow-up regimens and testing" (claimant's affidavit sworn to October 2, 2008).

Claimant first seeks to compel a further response to demands numbered "3" and "4" of his request for production of documents dated February 23, 2008. The following are the demands and the defendant's response thereto:
3. DEMAND: Produce verified copy of diagnosis, treatment and prognosis Report resulting from Claimant's January 12, 2007 Emmergency [sic] Sick-Call visit to Facility's Hospital regarding consumption of the Chicken Vienna Sausages 'in question' purchased from Comstock Correctional Facility's Commissary on January 8, 2007.

RESPONSE: Defendant does not have in its possession a HIPPA release from claimant authorizing the release of medical records. Moreover, claimant may access his own medical records though [sic] the facility in which he is housed.

4. DEMAND: Produce verified copy of Invoice Purchase Sheet for bar code-number 0-39000-08643-1

RESPONSE: Attached as Exhibit C are copies of the following:

a. Invoice and Receiving Record, dated December 11, 2006

b. Invoice and Receiving Record, dated December 18, 2006

c. Purchase Order, dated December 19, 2007 and Invoice and Receiving Record, dated December 26, 2006

d. Invoice and Receiving Record, dated January 2, 2007

e. Invoice and Receiving Record, dated January 8, 2007
The Court finds defendant's responses to claimant's demand number "3" adequate. Claimant may inspect his medical records or provide a HIPPA compliant authorization to obtain copies of his records upon payment of a reasonable copying fee (see 7 NYCRR § 5.24 [a]; DeLeon v State of New York, Ct Cl, November 16, 2005 [Claim No. 110416; UID #2005-013-043] Patti, J.).

The Court also finds defendant's response to claimant's demand number "4" adequate, particularly in view of the defendant's prior admissions in this case and the fact that the claimant possesses the receipt for the purchase of the Vienna Sausages and the container bearing an expiration date long prior to the date of sale.

Claimant's motion for summary judgment must be denied. As the party seeking summary judgment, claimant must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact from the case (Cox v Kingsboro Medical Group, 88 NY2d 904 [1996]; Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Here, claimant failed to establish a causal connection between his alleged injuries and the ingestion of the Vienna Sausages (Silver v Quality Taste Rest., 11 AD3d 239 [2004]; Williams v White Castle Sys., 4 AD3d 161 [2004]; Lieberman v 293 Mediterranean Mkt. Corp., 303 AD2d 560 [2003]; cf. Jaroslawicz v Prestige Caterers, 292 AD2d 232 [2002]).

Inasmuch as the claimant failed to establish his prima facie entitlement to summary judgment, defense counsel's assertion that he is unable to oppose the motion on the merits because he did not receive the motion papers is of no consequence.

Based on the foregoing, the claimant's motion is denied.

February 4, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The court considered the following papers:
  1. Notice of motion dated October 2, 2008;
  2. Affidavit of Alvin Fulton, Jr. sworn to October 2, 2008 with exhibits;
  3. Affirmation of Glenn C. King dated November 12, 2008 with exhibits;
  4. Reply response of Alvin Fulton, Jr. dated November 18, 2008.