Pro se inmate's motion for summary judgment on his claim alleging both dental malpractice and lack of informed consent was denied as he failed to support his motion with expert medical proof or evidence of lack of informed consent.
|Claimant short name:||SAMUELS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Robert Samuels, Pro Se|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Charles Lim, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 23, 2021|
|See also (multicaptioned case)|
Claimant, a pro se inmate, moves for summary judgment pursuant to CPLR 3212.
Claimant seeks damages for dental malpractice and lack of informed consent arising from the alleged failure of a dentist at Great Meadow Correctional Facility, Helen Yune, D.M.D., to extract the correct tooth. Claimant alleges that on September 23, 2019 he signed a consent form authorizing the "removal of tooth #31" (claim, ¶ 6). He further alleges that on October 24, 2019, tooth #18 was mistakenly extracted instead, without his consent, and that his treatment records were falsified to indicate that tooth #31 was, in fact, extracted (see claim, ¶¶ 7-8).
Claimant argues that summary judgment in his favor is appropriate because all of the defendant's affirmative defenses are meritless. In making this argument, claimant misunderstands the nature of his burden of proof. A party moving for summary judgment "bears the heavy burden of establishing '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' " (Deleon v New York City Sanitation Dept., 25 NY3d 1102, 1106 , quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; see also Vega v Restani Constr. Corp., 18 NY3d 499, 503 ; see also CPLR 3212 [b]). In this regard, CPLR 3212 specifically requires that a motion for summary judgment be supported "by a copy of the pleadings and by other available proof, such as depositions and written admissions" and that "[t]he motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." Only where the movant has made this showing, does the burden shift to the opposing party "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 320, 324 ).
Here, claimant failed to support his motion with a copy of the pleadings or tender any proof demonstrating defendant committed dental malpractice or extracted a tooth without his consent. " '[A] [claimant] asserting a medical malpractice claim must demonstrate that the doctor deviated from acceptable medical practice, and that such deviation was a proximate cause of the [claimant's] injury' " (Majid v Cheon-Lee, 147 AD3d 66 [3d Dept 2016], quoting James v Wormuth, 21 NY3d 540, 545 ). Whether a medical provider deviated from the standard of care and the extent to which such deviation caused or contributed to a claimant's injury is generally not a matter of common knowledge which a fact finder can decide in the absence of medical evidence (Matter of Barnes v State of New York, 158 AD3d 961 [3d Dept 2018]; Abascal v State of New York, 93 AD3d 1216, 1217 [4th Dept 2012], lv denied 19 NY3d 805 ; Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; Duffen v State of New York, 245 AD2d 653 [3d Dept 1997], lv denied 91 NY2d 810 ; Macey v Hassam, 97 AD2d 919 [3d Dept 1983]). To meet his burden on the instant motion, claimant was required to support his motion with expert medical proof of a deviation from the standard of care and that such deviation caused or contributed to his condition. This he failed to do. In addition, claimant failed to meet his burden of demonstrating that tooth #18 was extracted without his consent. As a result, the burden did not shift to the defendant to establish the existence of material issues of fact.Accordingly, claimant's motion is denied.
February 23, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims