New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2009-015-189, Claim No. 115283, Motion No. M-76467


Pro se inmate failed to establish his entitlement to summary judgment on alleging medical malpractice.

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:
James Pettus, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney GeneralNo Appearance
Third-party defendant’s attorney:

Signature date:
July 16, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves for summary judgment on his claim alleging medical malpractice arising out of the discontinuance of the pain medication, Ultram, on April 15, 2008. The claim alleges that during the course of a random search of claimant's cell at Great Meadow Correctional Facility correction officers discovered four white pills which are described, alternatively, as "pain medication plaintiff receives" and "which were not plaintiffs, and left by another inmate, prior to plaintiff entering [the] cell . . . ". Claimant alleges that following discovery of the pills, Ultram (a pain medication), correction officers requested that medical personnel discontinue prescribing this medication to the claimant "(thereby) causing plaintiff, who suffers serious medical conditions of (CHRONIC) arthritis in both hips and spine (thereby) causing plaintiff extreme pain and suffering and caused plaintiff health to degenerate to permanent damage."[1]

It is well established that " 'summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue' " (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978][citation omitted]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). "Whether the claim is grounded in negligence or medical malpractice, 'where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical testimony is a required element of a prima facie case' " (Myers v State of New York, 46 AD3d 1030, 1031 [2007]; see also Trottie v State of New York, 39 AD3d 1094 [2007]; Lowe v State of New York, 35 AD3d 1281 [2006]). Here, the issue of whether or not adequate medical care was provided for the claimant's condition is not one within the ordinary experience and knowledge of lay persons. Consequently, expert opinion evidence is required to establish claimant's prima facie entitlement to summary judgment. No such evidence was presented here. The medical records submitted by claimant fail to establish a deviation from the applicable standard of care and that any such deviation was a proximate cause of his injuries (Daugharty v Marshall, 60 AD3d 1219 [2009]). Nor were these records in admissible form as required (see Zuckerman v City of New York, 49 NY2d 557 [1980]; CPLR 4518 [c]). Additionally, claimant failed to submit copies of the pleadings in support of his motion thereby warranting denial of the motion on this basis alone (CPLR 3212 [b])
Based on the foregoing, claimant's motion for summary judgment is denied.

July 16, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of petition dated March 2, 2009;
  2. Petition of James Pettus sworn to March 6, 2009 with exhibits.

[1]. The quoted excerpt is uncorrected.