|Claimant short name:||ALSTON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||James J. Lack|
|Claimant's attorney:||Jesse Alston, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, New York State Attorney General
By: Paul F. Cagino, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 21, 2010|
|See also (multicaptioned case)|
This is a claim for injuries to Jesse Alston (hereinafter "claimant") due to the alleged medical malpractice of the defendant. Claimant injured his ankle, leg and knee while playing a game of football at Eastern Correctional Facility, Napanoch, New York, on May 18, 2002. Claimant's allegations of medical malpractice arise from the care he received after the incident. An x-ray taken immediately after the incident showed no evidence of fracture in claimant's ankle or leg. Approximately five days later, claimant received another x-ray and a fracture was found in his leg and ankle.
Defendant moves this Court for summary judgment(1) . Defendant submits the report of an expert who has reviewed claimant's medical records in regard to this incident. The expert finds no departures from good and accepted medical practice.
Claimant, in opposition to the motion, cites ineffective assistance of counsel. Claimant alleges instances where he did not agree with his former counsel's methods of discovery. Claimant insists he still needs further discovery.
Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if movant provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).
As discovery was still outstanding at the time of the making of this motion, the motion must be denied (Baron v Incorporated Village of Freeport, 143 AD2d 792).
Based upon the foregoing, defendant's motion for summary judgment is denied.
April 21, 2010
Hauppauge, New York
James J. Lack
Judge of the Court of Claims
1. The following papers have been read and considered on defendant's motion: Notice of Motion dated May 19, 2009 and filed May 20, 2009; Affirmation in Support of Defendant's Motion for Summary Judgment of Paul F. Cagino, Esq. with annexed Exhibits A-D dated May 19, 2009 and filed May 20, 2009; Notice of Claimant's Reply Motion to Affirmation in Support of Defendant's Motion for Summary Judgment of Jesse Alston with annexed Exhibits A-E sworn to June 3, 2009 and filed June 8, 2009.