|Claimant short name:||JOHNSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||HON. JUDITH A. HARD|
|Claimant's attorney:||Johnathan Johnson, Pro Se|
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Michael C. Rizzo, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||June 22, 2010|
|See also (multicaptioned case)|
Claimant has moved for an order granting him partial summary judgment on his claim, which alleges that defendant gave him a dietary loaf containing ingredients to which he was allergic. Defendant opposes the motion on the basis that claimant has failed to submit expert medical proof needed to establish a prima facie case of liability in a medical malpractice or medical negligence case. For the reasons set forth below, the Court denies claimant's motion for partial summary judgment.
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 (Alvarez, supra; Winegrad, 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]).
In the present case, claimant alleges that defendant was negligent in giving him a dietary loaf that contained ingredients to which he was allergic, and that eating said dietary loaf made him ill. In support of his motion, he annexed a copy of his claim, defendant's Verified Answer, a report dated February 19, 2009 regarding milk, wheat, cheese and egg allergy tests conducted on claimant, a recipe for a restricted dietary loaf, as well as claimant's Inmate Grievance Complaint, dated September 15, 2008, the IGRC response, and the Superintendent's response on appeal. However, he has failed to provide any evidence from which the Court can infer that defendant was negligent at the time it actually administered the dietary loaf. To the contrary, defendant alleges that claimant was not diagnosed with a food allergy prior to the imposition of a restricted diet. Because there is a material issue of fact regarding whether defendant authorized and imposed the dietary loaf before or after claimant was diagnosed with a specific allergy to ingredients in said loaf, summary judgment must be denied. However, even if the Court were to infer that defendant was negligent in administering the dietary loaf to claimant, summary judgment would still be denied because claimant has failed to provide medical evidence necessary to establish that his alleged injuries were the proximate cause of said negligence (Wood v State of New York, 45 AD3d 1198, 1198 [3d Dept 2007]; Duffen v State of New York, 245 AD2d 653 [3d Dept 1997], lv denied 91 NY2d 810 ).
Based upon the foregoing, the Court finds that claimant has failed to set forth his prima facie entitlement to judgment as a matter of law. Accordingly, claimant's motion for partial summary judgment is denied.
June 22, 2010
Albany, New York
HON. JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion for Partial Summary Judgment, dated March 10, 2010, and Affidavit of Johnathan Johnson, sworn to March 10, 2010, with Exhibits;
2. Affirmation in Opposition of Michael C. Rizzo, AAG, dated April 14, 2010;
3. Reply letter of Johnathan Johnson, dated April 20, 2010.
Papers Filed: Claim, filed April 22, 2009, Order of Hon. Richard E. Sise, filed May 18, 2009; Verified Answer, filed June 5, 2009.