New York State Court of Claims

New York State Court of Claims
MARSH v. THE STATE OF NEW YORK, # 2021-054-049, Claim No. 130166, Motion No. M-97105


The Court denied the State's motion for summary judgment as to liability only where no expert evidence submitted to prove negligence arising from the failure to house incarcerated individual with painful back condition on a lower floor.

Case information

UID: 2021-054-049
Claimant(s): MICHAEL MARSH
Claimant short name: MARSH
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130166
Motion number(s): M-97105
Cross-motion number(s):
Claimant's attorney: NAPOLI SHKOLNIK, PLLC
By: Craig Phemister, Esq.
Defendant's attorney: HON. LETITIA JAMES
Attorney General for the State of New York
By: Joseph E. Scolavino, Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 22, 2021
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers numbered 1-3 were read and considered by the Court on the State's Motion for Summary Judgment:

Notice of Motion, State's Attorney's Supporting Affirmation, Exhibits and Memorandum of Law 1

Attorney's Affirmation in Opposition, and Exhibits 2

State's Attorney's Affirmation in Sur-Reply 3

The claim alleges that on January 14, 2016, claimant was injured when his leg gave out and he fell walking down the stairs at Sing Sing Correctional Facility (Sing Sing), where he was incarcerated.(1) The State moves for summary judgment and dismissal of the claim, arguing that treatment of claimant's reported lower-back pain and placement of him on the third floor did not breach its duty of care and did not proximately cause his injury. In opposition, claimant argues that the evidence shows the State had a duty to place him on the first floor as it was foreseeable that he was at risk of falling down the stairs because of his medical condition, and disputed issues of material fact require denial of the motion.

"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "Failure to make such [a] prima facie showing requires a denial of the motion regardless of the sufficiency of the opposing papers" (Alvarez, 68 NY2d at 324; see Winegrad, 64 NY2d at 853). Once this burden has been met, the party opposing such motion must " 'show facts sufficient to require a trial of any issue of fact' " (Zuckerman, 49 NY2d at 562, quoting CPLR 3212 [b]). The issues raised on a summary judgment motion are to be considered " 'in the light most favorable to the non-moving party' " (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012], quoting Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 340 [2011]).

A summary judgment motion must be supported by an affidavit of a person having knowledge of the facts, together with a copy of the pleadings and other available proof (S. J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974]; see CPLR 3212 [b]). The affidavit "shall recite all the material facts" and where the motion is brought by the defense, it "shall show that . . . the cause of action has no merit" (CPLR 3212 [b]).

The instant motion is supported by an Affirmation of Assistant Attorney General Joseph E. Scolavino (Scolavino Aff.), copies of the pleadings (Exs. A-C), claimant's deposition transcript (Ex. E), and a certified copy of claimant's medical records maintained by the New York State Department of Corrections and Community Supervision (DOCCS) (Ex. D). Claimant's Opposition is supported by an Affirmation of Craig Phemister, Esq. (Phemister Aff.), copies of Claimant's Verified Bill of Particulars (Ex. 1), DOCCS Ambulatory Health Records (Ex. 2), Grievances (Exs. 3-6), and a Certification for the DOCCS records (Ex. 7). The State submitted a Sur-Reply in response to the opposition.(2)

The State did not submit an affidavit as required by CPLR 3212 (b), but claimant does not raise the lack of an affidavit in his opposition. In any event, CPLR 105 (u) provides that a verified pleading may be used as an affidavit. In that regard, the verified claim (Ex. A, 2) makes the following allegations of fact:

"On or about January 14, 2016, claimant was on his way to sick call at approximately 5:30-6:00 am within the Sing Sing Correctional Facility from A Block, K company, 50 cell. As he descended the stairs, upon turning onto J Company, while holding onto the railing, he was caused to fall down the stairs when his right leg gave out due to prior severe lower back pain radiating into his legs.

For several months prior to January 14, 2016, claimant had severe and chronic lower back pain radiating down his right leg - causing it to give out on occasion. Claimant made these complaints to medical staff within Sing Sing on numerous occasions, was being treated for this condition at Sing Sing, and requested that he either be moved to the same floor level as his medical appointments, or be given assistance in ambulating down the stairs such as a cane, a walker, or a person to assist him while descending the stairs. These requests were ignored and/or denied. Claimant was forced to remain in a cell on an upper level and required to use multiple flights of stairs on a daily basis without the assistance of a walking device, despite his prior complaints and requests for same."

The claim also alleges that as a result of the fall, claimant "sustained injuries and exacerbated pre-existing injuries to his lower back, head, neck, right leg and right hip [. . . and] was required to undergo a surgical procedure to his lower back" (Ex. A at 5).

"Having assumed physical custody of [incarcerated persons], who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard [them]" (Sanchez v State of New York, 99 NY2d 247, 252-253 [2002]). That duty does not, however, render the State an insurer of incarcerated persons' safety. Like other duties in tort, the scope of the State's duty to protect incarcerated persons is limited to risks of harm that are reasonably foreseeable (id.; see Villar v Howard, 28 NY3d 74, 80 [2016] [finding facility need not foresee specific harm]). The State also owes a duty of ordinary care to provide its charges with adequate medical care (see Mullally v State of New York, 289 AD2d 308, 308 [2d Dept 2001]; Kagan v State of New York, 221 AD2d 7, 8 [2d Dept 1996]). To prove that the State failed in its duty and committed medical malpractice, a claimant must establish by a preponderance of the 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 Mullally, 289 AD2d at 308; Kaminsky v State of New York, 265 AD2d 306, 306 [2d Dept 1999]).

The instant motion focuses entirely on common law negligence, even though the Note of Issue indicates this is a medical malpractice action.(3) Nonetheless, Assistant Attorney General Joseph E. Scolavino explains in his affirmation that, "at the Trial Preparation Conference, counsel for Claimant, Craig Phemister, Esq., maintained that this was not, in fact a medical malpractice nor medical negligence action, but an ordinary negligence action" (see Scolavino Aff., 6-8).(4) Regardless of what claimant's attorney might have said at the conference, "[w]hether the claim is grounded in negligence or medical malpractice, where there are medical issues raised by the facts and they '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], quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]). In opposition, claimant's attorney does not argue for denial of the motion based on the State's failure to submit an expert opinion. Nevertheless, the State carries the initial burden to establish its entitlement to summary judgment, and the law requires an expert opinion "irrespective of whether the claim is framed as one for negligence or medical malpractice" (Carter v State of New York, 11 Misc 3d 1082 [A] [Ct Cl 2006], quoting Tatta, 19 AD3d at 818).

Here, the State did not submit an expert opinion in support of summary judgment.(5) Thus, to meet its burden on the within motion, the State would need to establish either that medical decisions are not at issue or, if medical decisions are at issue, that they are within the "ordinary experience and knowledge of lay persons" (Tatta, 19 AD3d at 818). Based on the evidence submitted by the State in support of the within motion, the Court finds that medical decisions are in issue and they are not within the "ordinary experience and knowledge of lay persons" (id.).

The medical records show the following facts. Starting on or before July 27, 2015, claimant went regularly to sick call complaining of lower back, hip and leg pain, and pain when he ambulated. Sometimes he walked to sick call and other times he went by wheelchair or stretcher. A radiologist found that X-rays done on August 25, 2015 showed: "[d]egenerative lower lumbar disc disease L4-L5. Mild to moderate degenerative lower lumbar spondylosis L4 & L5. Muscle spasm with loss lumbar lordosis" (Ex. D, p 225). Claimant was admitted to the infirmary and placed on bed rest on December 6, 2015 (id. at 30). He was treated for his back and leg pain with Ibuprofen, Toradol, Percocet and other medications. On December 11, 2015, an MRI was requested by Nelson Muthra (id. at 36-37). Progress notes indicate that claimant was ambulating at times without assistance. Claimant was discharged from the infirmary on December 21, 2015. On January 5, 2016, a physical therapy consultant wrote in her report, inter alia: "1) [] pt benefit from st. cane & a soft [] brace. 2) Highly recommend further tests to R/O any structural/soft tissue issues [] spine/LB region," and "No PT - refer as needed [] tests - if appropriate [. . .] Pt's pain has progressed & is affecting [] & amb & transfers" (id. at 116).(6) An MRI was not done until after claimant's fall on January 14, 2016, when he was taken by ambulance to Mount Vernon Hospital, where he stayed until January 18, 2016 (id. at 46). After returning to Sing Sing, claimant was seen by an orthopedic consultant, who recommended back surgery (id. at 84). Claimant's surgery was performed at Westchester Medical Center on November 4, 2016. The surgery included a laminectomy, disc excision and spinal fusion (id. at 117-159).

Claimant also testified to the following facts at his deposition (Ex. E). He described the location and intensity of the pain he experienced in his back and leg, and how it made it difficult for him to get around. He acknowledged seeing a physical therapist, but he did not recall being given a course of therapy and asserted that when he did see the therapist, she said she could not work with him until after he had an MRI. His pain worsened and he was admitted to the infirmary, where he was on bed rest for some time. When he was discharged from the infirmary, he was given crutches and a "flats pass" to move him from the third floor to the first floor because he could not go up the stairs. At the time, he was told he would stay on the first floor until he had an MRI or saw his healthcare provider.(7) Before he had an MRI or went to an outside facility, he was moved back to the third floor, where he was housed on the day of the accident (Ex. E, pp 26-37). On that day, January 14, 2016, a correction officer told him he had sick call and would get a ticket if he did not show up. He had to go down two flights of stairs. He asked for help but nobody came and they had taken back his cane. He limped to the stairs, then holding the railing he made it down the first flight, but his leg gave out three or four steps down the second flight and he fell (Ex. E, pp 56-63).

In the Court's view, once claimant sought medical intervention for his back pain and he was receiving treatment, decisions with respect to not only the treatment of his condition, but also where he would be housed and "whether and how he would ambulate within the facility by reason of that condition, became matters of medical care and treatment, rather than simple classification and assignment" (Carlson v State of New York, 34 Misc 3d 242, 253 [Ct Cl 2011] [decisions as to claimant's ambulation were medical after he sought medical intervention for prosthesis]; see Knight v State of New York, 127 AD3d 1435, 1435 [3d Dept 2015], appeal dismissed 25 NY3d 1212 [2015] [finding that claimant needed expert evidence to show the reason why the State took away the cane he was using for ambulatory assistance]). The Court would caution, however, that claimant has the burden at trial of establishing, with expert proof, that the State failed in its duty to provide him with adequate medical care, and that such failure was a proximate cause of his injuries.

The State's argument for summary judgment on the element of proximate cause also suffers from a lack of expert evidence. Where, as here, 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 Barnes v State of New York, 189 AD3d 1781, 1782 [3d Dept 2020], lv denied 37 NY3d 905 [2021]; Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]). The same requirement would apply to the State in proving that claimant's placement on the third floor and lack of assistance did not cause or contribute to his fall. Instead of adducing affirmative evidence of entitlement to summary judgment relief, the State argues there is no admissible evidence that claimant needed assistance or an assistive device to get to sick call, needed to be housed on a lower floor, and sustained injury or required surgery as a result of the fall. The motion was brought by the State, not claimant, and the evidence proffered by the State neither establishes that the claim has no merit, nor "eliminate[s] any material issues of fact from the case" (Winegrad, 64 NY2d at 853).

The State highlights several disputed facts in its moving papers. On the one hand, the State argues that the evidence shows claimant was "malingering," and on the other hand, that it is just as likely the surgery was needed to address his prior condition as opposed to injuries from the fall.(8) Claimant's condition prior to the fall, whether he needed assistance with ambulating and climbing stairs, and whether the fall injured him or exacerbated his condition, present material issues of fact requiring a trial and expert testimony.

The appellate decisions relied on by the State do not support a different conclusion. In Rubin v Staten Is. Univ. Hosp., 39 AD3d 618, 618 [2d Dept 2007], the Second Department reversed denial of the defendant's summary judgment motion, finding sufficient evidence that the "alleged delay in providing a wheelchair to the plaintiff's decedent was not a proximate cause of her injuries." The brief decision does not describe the evidence that was submitted by the defendant or otherwise explain the basis for the finding. The Rubin decision is cited generally for its statement of the elements in a negligence cause of action (see e.g. Greenbaum v Bare Meats, Inc., 178 AD3d 775, 776 [2d Dept 2019]). In Pietrunti v Island Diagnostic Labs. [252 AD2d 576 (2d Dept 1998)], the Second Department affirmed dismissal of a complaint on a motion to dismiss, not a motion for summary judgment as the State asserts. The decision also turned on the issue of whether the defendant laboratory owed a duty to the plaintiff, who collapsed after observing her child have her blood drawn. It is not disputed in the instant action that the State owed claimant a duty to provide adequate medical care (see Mullally, 289 AD2d at 308).

In sum, the State has not met its burden to "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad, 64 NY2d at 853).

Accordingly, the State's Motion for Summary Judgment is DENIED. A trial on the issue of liability only will be scheduled as soon as practicable.

November 22, 2021

White Plains, New York


Judge of the Court of Claims

1. By Order dated August 25, 2021, the claim was transferred from Judge Stephen J. Mignano to Judge Walter Rivera due to Judge Mignano's retirement.

2. The State asserts that it received the opposition on November 11, 2021, one day short of the seven days before the November 17, 2021 return date demanded in the notice of motion pursuant to CPLR 2214 [b]. The Court will exercise its discretion to consider claimant's papers as the State does not assert it was prejudiced by the delay.

3. The Court takes judicial notice of the Note of Issue in the court file that was filed on November 12, 2019.

4. The Virtual Trial Preparation Conference was held by Principal Law Clerk Tracy Young Wells.

5. The State listed an expert on its witness list submitted to the Court prior to the Virtual Trial Preparation Conference. The decision not to submit an expert opinion in support of summary judgment was based on a mistaken view by defense counsel that the statement by claimant's counsel at the conference somehow changed the State's burden of proof under the prevailing law.

6. "[]" is used where the writing is illegible. In its sur-reply, the State concludes from the report that claimant's physical therapy ended because his "movement, balance, extension and strength were such that he would not benefit from physical therapy, pending any further tests or evaluations" (sur-reply, p 4). On its face, the report does not reflect that such a conclusion was made by the physical therapist, and the clinical significance of noted observations is not provided. Also, the copy provided to the Court cuts off notations at the bottom of the page.

7. During his deposition testimony, claimant did not identify who told him how long he would remain housed on the first floor.

8. The State points to

a physical therapy consultant's report noting on October 15, 2015 that claimant failed to appear for therapy on three prior dates (Ex. D at 115). However, claimant testified that he did not receive "call-outs" for physical therapy, if he had received them and did not show up for therapy, he would have been considered "out of place," and he did not get any out of place tickets for failing to show up at physical therapy (Ex. E, pp 49-50, 68, 108).