Motion for partial summary judgment was denied.
|Claimant short name:||GIBSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Lavar Gibson, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Roberto Barbosa, AAG
|Third-party defendant's attorney:|
|Signature date:||January 26, 2010|
|See also (multicaptioned case)|
Lavar Gibson moves for an order granting him partial summary judgment "and . . . declar[ing] that the [claimant] was given the incorrect . . . medication Zoloft . . . and granting claimant damages. . ." In his claim, Mr. Gibson alleges that while incarcerated at Woodbourne Correctional Facility on July 11, 2008, he was wrongly given the medication, which was actually intended for another inmate with the same last name. He further alleges that thereafter, he suffered nausea, vomiting, headaches and stomachaches which lasted for 48 hours.
Claimant previously moved for summary judgment (motion no. M-76147). That motion was denied in a Decision and Order dated May 26, 2009, in which the Court stated that while defendant did not dispute that claimant was given Zoloft in error, defendant did dispute claimant's symptoms and their causation, and that issues of fact thus precluded the granting of summary judgment.
To the extent that this can be seen as a motion to reargue or renew, claimant fails to show that any matters of fact or law were overlooked or misapprehended by the court, or to identify a change in the law or offer new facts not offered on the prior motion that would change the prior determination. See CPLR 2221.
Claimant attempts to distinguish the instant motion from the previous one by characterizing it as one for partial summary judgment on the issue of having been given and ingesting the medication. However, in order for defendant to be liable, aside from his ingestion of Zoloft, claimant would have to prove that he suffered symptoms and that they were caused by Zoloft - which would require the testimony of a physician. On the instant motion, claimant has submitted nothing additional regarding his symptoms or their causation.
In view of the foregoing, having reviewed the submissions(1) , IT IS ORDERED that motion no. M-77416 be denied.
January 26, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. The following were reviewed: claimant's notice of motion with affidavit in support and "Appendix" of exhibits 1 through 4; defendant's affirmation in opposition; and claimant's "Response to [Defendant's] Affirmation in Opposition to Claimant's Partial Summary Judgment Motion Pursuant to C.P.L.R. §3212(E)."