|Claimant short name:||FORD|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Richard Ford, Pro Se|
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: James E. Shoemaker, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||March 22, 2010|
|See also (multicaptioned case)|
Claimant moves this Court for an order granting him summary judgment and striking defendant's affirmative defenses. Defendant opposes the motion on the bases that claimant has previously moved for summary judgment, that there exists an issue of material fact, and that the affirmative defenses asserted by defendant are proper and neither scandalous nor prejudicial. For the reasons set forth below, the Court denies claimant's motion in its entirety.
The underlying claim asserts causes of action sounding in negligence and medical malpractice arising from the treatment, or lack thereof, rendered to claimant while incarcerated at Southport Correctional Facility on or about November 11, 2004. Specifically, claimant alleges that after being assaulted by another inmate, he sought medical treatment to remove a piece of metal that had been lodged in his cheek and that as a result of said treatment, he suffers from nerve damage, pain and numbness.
Motion for Summary Judgment
The Court notes that this is the second motion for summary judgment filed by claimant in this claim. The first motion was denied by Decision and Order (Sise, P.J.), filed April 13, 2006. It is well settled that multiple motions for summary judgment in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause (see LaFreniere v Capital Dist. Transp. Auth., 105 AD2d 517 [3d Dept 1984]; Pavlovich v Zimmet, 50 AD3d 1364 [3d Dept 2008]). In the present case, claimant has offered no newly discovered evidence or other sufficient cause warranting a subsequent motion for summary judgment. Accordingly, claimant's motion for summary judgment is denied. Nevertheless, even if the Court were to address the motion on the merits, it would still be denied.
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 ). 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 ). The proponent of a motion for summary judgment must make 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 ). Failure to make such a showing requires denial of a summary judgment motion, regardless of the sufficiency of the opposing party's papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 ). 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 (see Alvarez v Prospect Hosp., 68 NY2d 320, supra; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, supra; Zuckerman v City of New York, 49 NY2d 557, 562 ). The evidence must be viewed in the light most favorable to the opponent of the motion, and that party should be given every favorable inference (see McKinnon v Bell Sec., 268 AD2d 220 [1st Dept 2000]).
CPLR § 3212 (b) states that a motion for summary judgment shall be supported by an affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. It further states that the affidavit shall be by a person having knowledge of the facts, that it shall recite all the material facts, and shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish a proponent's prima facie burden (JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373 ; Vermette v Kenworth Truck Co., 68 NY2d 714 ). A movant's failure to include relevant pleadings in his motion warrants a denial of summary judgment (Senor v State of New York, 23 AD3d 851 [3d Dept 2005]).
In the present case, claimant makes blanket statements about the care he received and the medical issues he allegedly suffers from as a result of said care. However, he has not submitted any testimony from an expert in support of his claim. It is well settled that whether a claim is grounded in negligence or medical malpractice, if the medical issues are not within the ordinary experience and knowledge of laypersons, an expert medical opinion that addresses whether defendant departed from accepted standards of medical care and, if so, whether that departure was the cause of the alleged injury, is a required element of a prima facie case (see Wells v State of New York, 228 AD2d 581 , lv denied 88 NY2d 814 ; Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 31 AD3d 877 [3d Dept 2006]). In the present case, the medical issues claimant complains of in the alleged maltreatment are not within the ordinary experience and knowledge of laypersons. Accordingly, an expert medical opinion addressing whether defendant departed from accepted standards of medical care and whether that departure was the cause of the alleged injury is required.
Based upon claimant's failure to provide an expert affidavit in support of his motion, this Court finds that he has not met his prima facie burden of establishing his right to judgment as a matter of law. Accordingly, were claimant's motion for summary judgment to be determined on the merits, it would be denied.
Motion to Strike Affirmative Defenses
Claimant seeks to strike the three affirmative defenses asserted by defendant in its verified answer. Pursuant to CPLR 3211 (b), a motion to dismiss a defense must be made on the ground that either the defense is not stated or has no merit. The moving party bears the burden of coming forward with sufficient proof to demonstrate that the defense cannot be maintained (Arquette v State of New York, 190 Misc 2d 676 [Ct Cl 2001]; Vita v New York Waste Services, LLC, 34 AD3d 559 [2d Dept 2006]). It is error for a court to strike a defense if a material issue of fact remains unresolved (Matter of Harrison v State of New York, 262 AD2d 833 [3d Dept 1999]) or if there is any doubt as to the availability of the defense (Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721 [2d Dept 2008]; Thy Tran v Avis Rent A Car, 289 AD2d 731, 732 [3d Dept 2001]).
In the present case, defendant's first affirmative defense asserts that claimant's injuries and damages were caused by or contributed to by claimant's culpable conduct. Its second affirmative defense asserts third party negligence, and its third affirmative defense asserts that the defendant is not liable to claimant based upon a claim of lack of informed consent. Claimant has failed to establish that these defenses have no merit or are otherwise deficient. Accordingly, claimant's motion to strike each affirmative defense is denied.
To the extent claimant's motion requests a trial preference, it is hereby denied. Claimant has failed to set forth any facts to suggest that his claim falls into any of the cases which would be entitled to a trial preference in accordance with CPLR 3403 (a). Unless inmate pro se claims qualify for a preference, they are held at regularly scheduled prison terms in the order in which the claims are filed and claimant will be notified by mail as to the date and place of his trial when it is scheduled.
Based upon the foregoing, claimant's motion (M-77374) is denied in its entirety.
March 22, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion for Summary Judgment and Affidavit of Claimant in Support, sworn to October 4, 2009, with Exhibits;
2. Affirmation of James E. Shoemaker, AAG, in Opposition to Claimant's Motion for Summary Judgment, dated November 25, 2009, with Exhibits.
Papers Filed: Verified Claim, filed on December 20, 2005; Order of Hon. Richard E. Sise, Presiding Judge, filed on January 9, 2006; Verified Answer, filed on January 20, 2006; and Decision and Order of Hon. Richard E. Sise, Presiding Judge, filed April 13, 2006.