Claimant's motion for summary judgment and motion for the assignment of counsel are denied.
|Claimant(s):||DARIUS T. ASHLEY|
|Claimant short name:||ASHLEY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Darius T. Ashley, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Ray A. Kyles, AAG
|Third-party defendant's attorney:|
|Signature date:||January 7, 2020|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, filed the instant claim on September 20, 2016 alleging causes of action sounding in medical malpractice and/or medical negligence. By Decision and Order dated December 31, 2018, the Court dismissed all causes of action except claimant's medical malpractice cause of action regarding his broken hand and the treatment he received at Upstate Correctional Facility ("Upstate") (Ashley v State of New York, UID No. 2018-032-095 [Ct Cl, Hard, J., Dec. 31, 2018]). Claimant now moves for summary judgment on the medical malpractice cause of action and for the assignment of counsel.
"Summary judgment is a drastic remedy that 'should not be granted where there is any doubt as to the existence of [triable] issues [of fact], or where the issue is arguable'" (Hall v Queensbury Union Free Sch. Dist., 147 AD3d 1249, 1250 [3d Dept. 2017], quoting Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 ; see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 ; Stukas v Streiter, 83 AD3d 18, 23 [2d Dept. 2011]). The proponent of the motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324  [internal citations omitted]; see Zuckerman v City of New York, 49 NY2d 557, 562 ; Robinson v Kingston Hosp., 55 AD3d 1121, 1123 [3d Dept. 2008]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment 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 v Prospect Hosp., 68 NY2d at 324; see Town of Kirkwood v Ritter, 80 AD3d 944, 945-946 [3d Dept. 2011]). In considering the motion, the Court "must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations" (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [3d Dept. 2011]; see Winne v Town of Duanesburg, 86 AD3d 779, 780-781 [3d Dept. 2011]).
"It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons" (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept. 1990], lv denied 76 NY2d 701 ; accord Auger v State of New York, 263 AD2d 929, 931 [3d Dept. 1999]). Here, to prove that the State breached its duty to provide claimant with reasonable and adequate medical care, claimant must establish by a preponderance of the credible evidence that the State departed from good and accepted standards of care and that such departure was a substantial factor or a proximate cause of the alleged injuries (see Knight v State of New York, 127 AD3d 1435, 1435 [3d Dept. 2015], appeal dismissed 25 NY3d 1212 ). Additionally, where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is required to establish that the State's alleged negligence caused or contributed to claimant's injuries (see Wood v State of New York, 45 AD3d 1198 [3d Dept. 2007]).
Here, claimant alleges that the staff at Upstate failed to timely diagnose and treat his broken hand and that the failure resulted in pain and impaired mobility in his hand. To support his motion, he attaches his medical records concerning treatment he received for his broken hand. However, medical expert testimony is required to support claimant's allegations of medical malpractice (Davis v State of New York, 151 AD3d 1411 [3d Dept. 2017]). Therefore, the Court denies claimant's motion for summary judgment.
Claimant also seeks the assignment of counsel in this matter. The assignment of counsel in civil matters is discretionary and is generally denied except in cases involving grievous forfeiture or loss of a fundamental right (see Matter of Smiley, 36 NY2d 433 ; Wills v City of Troy, 258 AD2d 849 [3d Dept. 1999], lv denied 93 NY2d 1000 ). The decision of whether to assign counsel in a particular claim lies in the sound discretion of the Court (see Matter of Smiley, 36 NY2d at 438; Planck v County of Schenectady, 51 AD3d 1283 [3d Dept. 2008]). The Court has reviewed the instant claim and finds that claimant is not facing a loss of liberty or grievous forfeiture that would warrant the assignment of counsel (see Morgenthau v Garcia, 148 Misc 2d 900, 903-904 [Sup Ct, New York County 1990]).
To the extent claimant also seeks poor person status, his application is denied. By Order of the Acting Presiding Judge, Richard E. Sise, dated September 30, 2016, the initial filing fee for this claim was reduced. The continued litigation of this matter does not require the claimant to pay any additional costs or fees beyond the initial filing fee, and correctional facilities are required to provide limited free postage to inmates (see 7 NYCRR § 721.3 ; Randolph v State of New York, UID No. 2014-049-052 [Ct Cl, Weinstein, J., Sept. 19, 2014]).
Based upon the foregoing it is hereby
ORDERED that claimant's motion for summary judgment (M-94503) is DENIED; and it is further
ORDERED that claimant's motion for the assignment of counsel (M-94439) is DENIED.
January 7, 2020
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Application for Appointment of Counsel; and Affidavit in Support of Application Pursuant to CPLR 1101 (f), sworn to by claimant on August 14, 2018.
2. Notice of Motion for Summary Judgment, dated August 30, 2019; and Affidavit in Support of Motion for Summary Judgment, sworn to by claimant on August 26, 2019, with Exhibits A through C annexed thereto.
3. Affirmation in Opposition to Claimant's Motion for Summary Judgment, affirmed by Ray A. Kyles, AAG on October 4, 2019.4. Motion Objecting to Defendant's Affirmation in Opposition to claimant's Motion for Summary Judgment, sworn to by claimant on October 8, 2019.