Claimant's motion for summary judgment denied. Motion was unsupported by a complete copy of the pleadings, and was also unsupported by an expert affidavit or any other evidence addressing the standard of care.
|Claimant short name:||MIMS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||GEORGE MIMS, Pro se|
|Defendant's attorney:||BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Elizabeth A. Gavin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 27, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim on November 1, 2017 alleging medical malpractice, medical negligence and delayed treatment by Green Haven Correctional Facility (CF) medical personnel and by a surgeon acting as an agent of the Department of Corrections and Community Supervision. Claimant moves for summary judgment. Defendant opposes the motion. Claimant's motion will be denied for the following reasons.
As an initial matter, claimant's motion is not in compliance with CPLR 3212 (b), which requires a motion for summary judgment to be supported by a copy of the pleadings (see Greene v Wood, 6 AD3d 976 [3d Dept 2004]; Senor v State of New York, 23 AD3d 851 [3d Dept 2005]), even if an adverse party may have possession of a copy of the pleadings and/or that the pleadings have been filed with the Clerk of the Court of Claims (see Senor v State 23 AD3d, at 851 [claimant's motion for summary judgment properly denied for lack of inclusion of pleadings]). Claimant's motion is supported by a copy of the claim but not a copy of defendant's answer, and thus, "the movant's failure to include a copy of the pleadings in the papers supporting a motion for summary judgment 'require[s] summary denial of the motion' " (Greene v Wood, 6 AD3d at 976 quoting Welton v Drobnicki, 298 AD2d 757, 757 [3d Dept 2002]).
Even if the motion were not denied for noncompliance with CPLR 3212 (b), it is well-established that a "party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, producing sufficient evidence to demonstrate the absence of any material issue of fact" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 ; see Arias v State of New York, 195 Misc 2d 64 [Ct Cl 2003]). The evidence must be submitted in admissible form and must establish the movant's right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 ). If the movant establishes prima facie entitlement to summary judgment, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (Alvarez v Prospect Hosp. 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 ). However, when a movant fails to demonstrate its entitlement to summary judgment as a matter of law in the first instance, the motion must be denied (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ; Tiano v Lane, 260 AD2d 908 [3d Dept 1999]).
The State's "duty to provide medical care and treatment to its prisoners . . . has been defined in terms of both negligence. . . and medical malpractice" (Kagan v State of New York, 221 AD2d 7, 16 [2d Dept 1996]). A claim sounds in medical malpractice rather than negligence, when "the negligence alleged . . . relates . . . to the professional skill and judgment rendered by doctors [in medically treating a patient], rather than information within the common knowledge of a layperson" (Maki v Bassett Healthcare, 85 AD3d 1366, 1367 [3d Dept 2011], appeal dismissed 17 NY3d 855 , lv dismissed and denied 18 NY3d 870 ). Claimants alleging medical malpractice are "required to prove, through a medical expert, that [medical professionals] breached the standard for good and acceptable care in the locality where the treatment occurred and that [such] breach was the proximate cause of [their] injury" (Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]). Only a "narrow category of factually simple medical malpractice cases requires no expert to enable the [factfinder] reasonably to conclude that the accident would not happen without negligence. Not surprisingly, the oft-cited example is where a surgeon leaves a sponge or foreign object inside the [claimant's] body" (Kambat v St. Francis Hosp., 89 NY2d 489, 496 ; see also Rivers v State of New York, 142 Misc 2d 563, 567 [Ct Cl 1989], revd on other grounds, 159 AD2d 788 [3d Dept 1990], lv denied 76 NY2d 701  [expert affidavit unnecessary where medical malpractice related to operation on wrong body part]). However, and regardless of "[w]hether the claim is grounded in negligence or medical malpractice, '[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case' " (Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 , quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 ).
Claimant's motion is supported by his own affidavit, but no other affidavits of any kind are appended to the motion papers. Claimant's affidavit asserts in conclusory terms that defendant's agents committed medical malpractice and were negligent in the provision of medical care to him, and although his claim is supported by exhibits consisting of medical records, he has failed to offer proof in admissible form that demonstrates any basis for defendant's liability. Specifically, inasmuch as the claim alleges medical malpractice and involves medical issues not within ordinary experience and knowledge of lay persons, claimant was required to submit an affidavit or affirmation of an expert establishing defendant's liability, which is lacking and requires denial of the motion (see McCain v State of New York, UID No. 2014-049-035 [Ct Cl, Weinstein, J., June 10, 2014]; Malik v State of New York, UID No. 2007-038-529 [Ct Cl, DeBow, J., Apr. 18, 2007]). Claimant's argument that the medical reports that were attached to the motion papers were prepared by a medical expert and thus sustain his claim (see Mims Reply Affidavit, ¶ 6) is impertinent as those reports do not contain a statement as to the appropriate standard or care, an acknowledgment of a breach of that standard of care, or that the breach caused claimant's injuries. Thus, claimant has not met his prima facie burden of demonstrating his entitlement to judgment as a matter of law, and his motion for summary judgment cannot be granted.
Accordingly, it is
ORDERED, that claimant's motion number M-92506 is DENIED.
November 27, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Notice of Motion, dated June 28, 2018;
(2) Affidavit of George Mims in Support of Motion for Summary Judgment, sworn to June 28,
2018, with Attachment (Copy of Claim 130497, with Exhibits);
(3) Correspondence of Elizabeth A. Gavin, AAG, dated July 31, 2018;
(4) Correspondence of Nancy Schulman, Principal Law Clerk, dated August 3, 2018;
(5) Affirmation of Elizabeth A. Gavin, AAG, in Opposition to Motion for Summary Judgment,
dated August 8, 2018, with Exhibit A;
(6) Reply Affidavit of George Mims, sworn to August 29, 2018.