New York State Court of Claims

New York State Court of Claims

GIBSON v. THE STATE OF NEW YORK, #2009-016-031, Claim No. 115718, Motion No. M-76147


Synopsis



Case Information

UID:
2009-016-031
Claimant(s):
LAVAR A. GIBSON
Claimant short name:
GIBSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115718
Motion number(s):
M-76147
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Lavar A. Gibson, Pro Se
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Roberto Barbosa, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 26, 2009
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant Lavar A. Gibson moves for an order striking defendant’s answer and for summary judgment in his favor. In his claim, Mr. Gibson alleges as follows: On the evening of July 11, 2008, he reported to the infirmary at Woodbourne Correctional Facility to receive his daily prescribed dosage of the medication Paxil. When the nurse on duty dispensed his medication, he was given three additional pills along with the Paxil, which the nurse identified to him as Zoloft, and which she said had been prescribed for claimant by the facility psychiatrist. Gibson ingested the medication, and about an hour later, he was called back to the infirmary where the nurse advised him that the Zoloft had been given to him in error, and had actually been intended for another newly arrived inmate with the same last name as claimant. The next morning, claimant began suffering nausea, vomiting, headaches and stomach aches which lasted for 48 hours. Contrary to claimant’s allegations, defendant denies that the nurse had any discussion with claimant at the time she provided the Zoloft to him; according to defendant, claimant made no inquiry before swallowing the Zoloft pills. In any event, defendant does not dispute that “claimant was given, and ingested, 150 mg of Zoloft that was not prescribed to him . . .”[1] Defendant does, however, dispute claimant’s symptoms and their causation.

In order to prevail on this motion, Gibson must prove that any such symptoms were caused by the Zoloft -- this is the kind of issue that ordinarily requires expert testimony. In sum, issues of fact remain which preclude the granting of summary judgment. See CPLR 3212(b). Accordingly, having reviewed the submissions[2], IT IS ORDERED that motion no. M-76147 be denied.


May 26, 2009
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]See ¶5 of the March 18, 2009 affirmation of Roberto Barbosa.
  2. [2]The following were reviewed: claimant’s notice of motion with affidavit in support, attached claim and answer and exhibit list with exhibits A through H; defendant’s affirmation in opposition with exhibits 1 through 5; and “Claimant[’s] Response to Defendant’s Affirmation in Opposition for Summary Judgment.”