Opinion
# 2019-059-020 Claim No. 130672 Motion No. M-94269
10-30-2019
NORMAN BAKER v. THE STATE OF NEW YORK
NORMAN BAKER, pro se HON. LETITIA JAMES, ATTORNEY GENERAL By: Dorothy M. Keogh, Assistant Attorney General
Synopsis
Case information
| UID: | 2019-059-020 |
| Claimant(s): | NORMAN BAKER |
| Claimant short name: | BAKER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130672 |
| Motion number(s): | M-94269 |
| Cross-motion number(s): | |
| Judge: | MAUREEN T. LICCIONE |
| Claimant's attorney: | NORMAN BAKER, pro se |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL By: Dorothy M. Keogh, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 30, 2019 |
| City: | Central Islip |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This is a claim by an inmate proceeding pro se ("Baker" or "Claimant") for personal and psychological injuries allegedly sustained while he was incarcerated at Sing Sing Correctional Facility, as well as for the defendant's ("Defendant" or "State") alleged negligent failure to provide adequate medical care and for its medical malpractice at Sing Sing. Claimant also asserts claims for negligent medical care and medical malpractice by a physician at Montefiore Medical Center, where he was taken by Sing Sing staff.
The claim was filed December 5, 2017 and served in November, 2017. After a motion to dismiss was denied (Motion No. 91701, Scuccimarra, J.), an answer with thirteen affirmative defenses was served and filed in June 2018. Claimant now moves for summary judgment and to strike Defendant's answer.
Baker contends that Defendant allowed a dangerous condition to exist in his cell which caused his injuries;, namely, a defective and improperly maintained light fixture. More specifically, he alleges that on May 29, 2017 at approximately 5 A.M., while in his bed, Baker pulled on a string to turn on the light above the bed, causing the fixture to fall. As it fell, one of the two fluorescent bulbs within the fixture hit the cell locker. The bulb then shattered or exploded causing pieces of glass to fly around the cell. Some glass shards became imbedded in Baker's right eye, causing alleged pain and suffering as well as permanent injuries. Baker alleges that the cover piece of the fixture which should have been over the fluorescent bulbs was missing at the time of the accident due to Defendant's negligence and failure to maintain the fixture. He further claims that the absence of the cover caused the bulb to shatter and for shards of glass to fly into his eye.
Baker's claim next alleges that he was taken that day to the Sing Sing medical facility and then was transported to Montefiore Medical Center. The claim alleges that the emergency room physician at Montefiore failed to observe the glass in his eye, despite Baker's repeated protestations indicating to the physician that he could feel it. Upon his return to Sing Sing, Baker experienced pain, severe headaches and bleeding from his eye. He claims staff disregarded his complaints of glass in his eye. On the next day, a piece of glass fell from his right eye and a fellow inmate observed another piece protruding from it. The medical staff at Sing Sing then had Claimant transported to Westchester Medical Center where the glass was removed.
After his return to Sing Sing and over a period of time Baker was treated by eye specialists. He alleges permanent nerve damage which makes it impossible to open his right eye. He contends that he experiences severe headaches, is required to wear transitional lenses and to take prescription medications. Baker further claims that as a result of this incident he experiences anxiety for which he requires medication and treatment.
Claimant's Summary Judgment Motion
Claimant's motion repeats the allegations set forth above and includes an exhibit indicating that after the incident Baker filed grievances and that the cover eventually was replaced. Defendant opposes the motion for summary judgment by asserting there are questions of fact as to the manner in which the accident occurred due to inconsistencies in Claimant's drawings of the incident (Sing Sing staff apparently did not take photographs) and as to whether the Claimant may have been comparatively negligent. Although the State offers no evidence or affidavit of a person with knowledge, it nevertheless asserts "[t]he possibility of Claimant having tampered with the fixture or bulb" as a potential question of fact barring summary judgment (Def. Aff. in Opp., ¶ 10).
"To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment in [his] favor' (CPLR 3212, subd. (b)), and he must do so by tender of evidentiary proof in admissible form" (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" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). "On the other hand, to defeat a motion for summary judgment the opposing party must 'show facts sufficient to require a trial of any issue of fact' (CPLR 3212, subd. [b]; Zuckerman, at 562). "We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form... mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman at 562 [internal citations omitted]). An affirmation from an attorney having no personal knowledge of the facts is without evidentiary value and, thus, is insufficient to raise a triable issue of fact (see Service v McCoy, 131 AD3d 1038 [2d Dept 2015]).
Injuries from Light Fixture
The State has a duty to maintain its facilities in a reasonably safe condition (see Preston v State of New York, 59 NY2d 997 [1983]). The State, however, is not an "insurer of inmate safety, and negligence will not be inferred from the mere occurrence of an accident" (Melendez v State of New York, 283 AD2d 729 [3d Dept 2001], lv dismissed 97 NY2d 649 [2001]). To establish a prima facie case of negligence in a premises liability claim, Claimant must establish that: (1) a foreseeably dangerous condition existed; (2) the State created the condition or had either actual or constructive notice of the condition; (3) the State failed to remedy the condition within a reasonable time; (4) such condition was a proximate cause of Claimant's injury and (5) Claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Mercer v City of New York, 223 AD2d 688 [2d Dept 1996], affd 88 NY2d 955 [1996]). If the risk of harm was foreseeable, the particular manner in which the injury occurred is not material to Defendant's liability (see Buckley v Sun & Surf Beach Club, 95 NY2d 914, 915 [2000]).
This Court has recognized that the lack of a fluorescent light fixture cover in the confined space of an inmate cell is a forseeably dangerous condition, since the presence of a cover prevents breakage or contains any flying glass (see e.g. Johnson v State of New York, UID No. 2001-028-0011 [Ct Cl, Sise, J., Apr. 13, 2001]). Baker's motion papers also establish that the condition of the light fixture was a proximate cause of his injuries and that he sustained damages. However, Baker's papers do not establish the other two prongs of the negligence claim; that the State created the condition or had notice of the condition or whether the State failed to remedy the condition of the light fixture within a reasonable time prior to the accident. Therefore, these questions of fact remain for trial (compare with Johnson, supra). Since Claimant has failed to make a prima facie showing, the Court need not address the sufficiency of Defendant's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Defendant offered only an attorney's affirmation speculating that Claimant may have been comparatively negligent, which would be insufficient to defeat Baker's motion had he established his prima facie case. In any event, Claimant does not have the burden of demonstrating the absence of his own comparative fault to be entitled to summary judgment. Rather, any comparative fault on the part of Claimant proven by Defendant at trial would serve to diminish Claimant's recovery (see Rodriguez v City of New York, 31 NY3d 312 [2018]).
Negligent Medical Care/ Malpractice
Turning to Claimant's allegations regarding his medical care, "[i]t is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons" including proper diagnosis and treatment (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990], lv denied 76 NY2d 701 [1990]). In a medical malpractice case, a claimant has the burden of proving that the medical provider "deviated from accepted medical practice and that the alleged deviation proximately caused his injuries" (Parker v State of New York, 242 AD2d 785, 786 [3d Dept 1997]; see Auger v State of New York, 263 AD2d 929 [3d Dept 1999]; Hale v State of New York, 53 AD2d 1025 [4th Dept 1976], lv denied 40 NY2d 804 [1976]). In other words, "[a] claimant must establish that the medical caregiver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field" (Cabness v State of New York, UID No. 2010-030-043 [Ct Cl, Scuccimarra, J., Dec. 6, 2010]).
Baker asserts claims for both medical negligence and medical malpractice and there is a subtle distinction between them. The Court of Appeals has recognized that although a medical provider "in a general sense is always furnishing medical care to patients . . . not every act of negligence toward a patient would be medical malpractice" (Bleiler v Bodnar, 65 NY2d 65, 73 [1985]). When the allegedly wrongful conduct "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician," the cause of action is for medical malpractice rather than negligence (id. at 72). "By contrast, when 'the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the [provider's] failure in fulfilling a different duty', the claim sounds in negligence" (Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996], quoting Bleiler, 65 NY2d at 73). However, "[u]nder either theory,'[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is . . . required' to establish that defendant's alleged negligence or deviation from an accepted standard of care caused or contributed to claimant's injuries" (Wood v State of New York, 45 AD3d 1198, 1198 [3d Dept 2007], quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]). If a claim can be read to allege simple negligence, or medical negligence, then the alleged negligent omissions or acts by the State's employees can be readily determined by a fact finder using common knowledge without the necessity of expert testimony (see De Jesus v State of New York, 15 Misc 3d 1105(A), *3 [Ct Cl, 2007], citing Coursen v New York Hosp.-Cornell Med. Ctr., 114 AD2d 254, 256 [1st Dept 1986]).
Regarding the claims of negligence and medical malpractice at Montefiore, it is well established that the State is not responsible for the malfeasance of a physician at an outside hospital not owned and operated by the State (see Williams v State of New York, 164 Misc 2d 783 [Ct Cl, 1995], citing Rivers v State of New York, 159 AD2d 788 [3d Dept 1990]). Accordingly, the Court has searched the record and grants summary judgement to Defendant with respect to the claims of medical negligence or malpractice at Montefiore Medical Center (CPLR 3212 [b]; see also Goldstein v County of Suffolk, 300 AD2d 441 [2d Dept 2002]).
Insofar as Claimant's motion seeks summary judgment for medical malpractice at Sing Sing, no affidavit of a medical expert has been submitted. In order to establish a medical malpractice cause claim, Claimant must show that Defendant deviated from the accepted standard of medical care and that the departure was a proximate cause of his injuries (see Mullally v State of New York, 289 AD2d 308 [2d Dept 2001]). An expert medical opinion affidavit is needed to demonstrate Sing Sing's medical staff departed from accepted medical practice and standards and that they caused injury to Claimant (see Matter of Perez v State of New York, 293 AD2d 918 [3d Dept 2002]). Accordingly, Claimant's motion for summary judgment on his malpractice claim is denied.
Although Baker contends that he should be awarded summary judgment on his medical negligence claims arising from his care at Sing Sing, these claims cannot be established without expert medical testimony. The motion papers do not establish, for example, that Sing Sing's medical staff inordinately delayed, or should not have relied on the Montefiore physician's diagnosis or that his injuries are related to Sing Sing's, rather than the Montefiore physicians' actions or omissions. Thus, summary judgment is denied on this claim.
Claimant's Motion to Strike the Answer
With respect to Claimant's application to strike Defendant's answer, Baker provides no legal basis for such relief. To the extent his application may be construed as one seeking dismissal of the State's affirmative defenses, Claimant has not come forward with sufficient proof to demonstrate that the defenses cannot be maintained (CPLR 3211 [b]; see also Gonzalez v Wingate at Beacon, 137 AD3d 747 [2d Dept 2016]; Vita v New York Waste Servs., LLC, 34 AD3d 559 [2d Dept 2006]).
In view of the foregoing, Claimant's motion for summary judgment and to strike Defendant's answer is denied. The Court has searched the record and finds that as a matter of law, Claimant cannot maintain his causes of action for medical negligence and medical malpractice against the State for alleged negligence that took place at Montefiore Medical Center (CPLR 3212 [b]). Accordingly, summary judgment dismissing the causes of action against Montefiore Medical Center is granted in Defendant's favor. The claims may proceed against the State.
Papers Considered:
1. Claimant's Notice of Motion for Summary Judgment; Affidavit in Support of Motion and attached exhibits.
2. Defendant's Affirmation in Opposition to Claimant's Motion for Summary Judgment.
3.Claimant's Reply to Defendant's Affirmation in Opposition to Claimant's Motion for Summary Judgment.
October 30, 2019
Central Islip , New York
MAUREEN T. LICCIONE
Judge of the Court of Claims