New York State Court of Claims

New York State Court of Claims

MORRISON v. THE STATE OF NEW YORK, #2009-032-103, Claim No. 115936, Motion No. M-75855


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:
Patrick Morrison, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Roberto Barbosa, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
January 26, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


This claim, commenced in October 2008, is based on allegations that the medical staff of Southport Correctional Facility failed to provide claimant with appropriate medical care. The substantive portion of the claim reads as follows:
The medical staff at this facility are not providing me proper medical care. I’ve made multiple request[s] to see them from 8-1-08 until now which constitutes negligence. I’ve told these people I have injuries I suffer from and I need medical treatment. They are being deliberate indifference [sic] and all other negligence violations that violates my rights. On 9-9-08 a male nurse by the name of Steve told another inmate my personal medical information, when I wrote a grievance for what he has done he lied and said he didn’t say it, when I have witnesses to prove he said it. All of the inmates are witnesses to this negligence. I seek a remedy in the Court of Claims. This falls under the tort law of negligence.
(Claim, ¶ 2.)

Issue has been joined and claimant has now moved for the following relief: “an order granting me $50,000 dollars and medical treatment for the negligence caused to me by the DOCS employees in this action” (Notice of Motion). Claimant also adds a brief, incomplete description of the type of medical treatment he seeks: “I’ve asked for a change of Elavil since I came here and I’ve also asked for a stronger medication because it doesn’t work” (Morrison Affidavit, ¶3).[1] Claimant has submitted no documents, affidavits or legal argument or authority to support his claim, stating only that “I have witnesses that can confirm he [presumably Steve] said it and I have witnesses and medical records that I’ve asked for medical treatment since I’ve arrived here on 8-1-08" (id. ¶ 1).

Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The Court’s function in a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (Barr v County of Albany, 50 NY2d 247 [1980]). The proponent of a motion for summary judgment must make out a prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Once this showing has been made, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (id. Winegrad v New York University Med. Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Negligence actions, including medical negligence or malpractice claims, are rarely appropriate for resolution by summary judgment, as they typically involve numerous factual issues and require an assessment of whether the defendant's actions were reasonable (Davis v Federated Dept. Stores, 227 AD2d 514, 515 [2d Dept 1996]). Moreover, credibility issues cannot be resolved on a motion for summary judgment (Goff v Clarke, 302 AD2d 725, 727 [3d Dept 2003]; see also Curanovic v New York Cent. Mut. Fire Ins. Co., 307 AD2d 435 [3d Dept 2003]).

The submissions made in connection with a motion for summary judgment must be examined in a light most favorable to the party opposing the motion (Iwaszkiewicz v Callanan Indus. Inc., 258 AD2d 776 [3d Dept 1999]), and in order to succeed, the moving party must make a prima facie showing that he is entitled to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., supra at 853; Zuckerman v City of New York, supra at 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). This burden of proof can only be met by the submission of evidentiary proof in admissible form (Rifenburgh v Wilczek, 294 AD2d 653 [3d Dept 2002]; Toomey v Adirondack Surgical Assocs., 280 AD2d 754 [3d Dept 2001]).

In almost all instances where a party seeks summary judgment in a medical malpractice action, the movant must submit opinion evidence to establish a deviation from the standard of care to which medical professionals must adhere in the community and to establish that any such deviation caused or contributed to the injuries he allegedly suffered (see generally Schrempf v State of New York, 66 NY2d 289 [1985]; Pike v Honsinger, 155 NY 201 [1898]; Hoffman v Pelletier, 6 AD3d 889 [3d Dept 2004]; Schuller v Martinelli, 304 AD2d 967 [3d Dept 2003], lv denied 100 NY2d 509 [2003]). Such expert opinion evidence is necessary here because the medical necessity for and consequences of a particular dosage of Elavil are not within the ordinary knowledge of the trier of fact (id. at 968; Morgan v State of New York, 40 AD2d 891 [3d Dept 1972], affd 34 NY2d 709 [1974]; Wells v State of New York, 228 AD2d 581 [2d Dept 1996]; Armstrong v State of New York, 214 AD2d 812 [3d Dept 1995]).

In the instant motion, claimant has submitted no evidence in admissible form to prove the elements of his claim, nor has he submitted any expert opinion evidence.

Claimant's motion for summary judgment is denied.

January 26, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion and Supporting Affidavit of Patrick Morrison, pro se;

2. Affirmation in Opposition of Roberto Barbosa, AAG.

Filed papers: Claim, Answer

[1].It should be noted that the Court of Claims does not have jurisdiction to award equitable relief (Matter of Gebman v Pataki, 256 AD2d 854, 855 [3d Dept 1998], lv denied 93 NY2d 808) and thus claimant’s demand for an order directing certain medical treatment cannot be satisfied in this action, either on summary judgment or following trial.