Opinion
516028.
04-07-2016
Reginald G. McFADDEN, Appellant, v. STATE of New York, Respondent.
Reginald G. McFadden, Attica, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), for respondent.
Reginald G. McFadden, Attica, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), for respondent.
Before: McCARTHY, J.P., EGAN JR., ROSE, DEVINE and CLARK, JJ.
DEVINE, J. Appeal from an order of the Court of Claims (Milano, J.), entered December 12, 2012, which denied claimant's motion for partial summary judgment.
Claimant, an inmate, commenced this action contending that correction officers used excessive force and assaulted him in three successive incidents that occurred during a single day. He further asserts that defendant thereafter failed to provide him with appropriate medical care. He moved for partial summary judgment on the issue of liability. The Court of Claims denied the motion and claimant appeals.
We affirm. “Summary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action” (Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] [internal quotation marks, brackets and citations omitted]; see Lacasse v. Sorbello, 121 A.D.3d 1241, 1241–1242, 995 N.Y.S.2d 245 [2014] ). Claimant stated in his affidavit that he was subjected to three separate unprovoked attacks by correction officers within a short period of time causing injuries for which he was sent to a hospital outside the facility. In opposition to the motion, defendant submitted affidavits by correction officers involved in the events at issue, and those individuals relay a markedly different version of events. They state that a handheld metal detector indicated that claimant had metal near his groin, after which claimant was escorted without incident to the facility hospital for a body orifice security scan. Once there, claimant suddenly attempted to flee the area. He was subdued following a struggle with the officers, after which a homemade metal weapon was discovered on the floor. Viewed in the light most favorable to defendant as the nonmovant (see Barrett v. Watkins, 82 A.D.3d 1569, 1571, 919 N.Y.S.2d 569 [2011] ; Encarnacion v. State of New York, 49 A.D.3d 1038, 1039, 854 N.Y.S.2d 567 [2008] ), there are triable issues as to what transpired and whether the force employed by the officers was reasonable. With respect to claimant's contention that defendant caused additional injuries to him by failing to follow proper medical protocols when he returned from the outside hospital, claimant did not meet his prima facie burden in that he failed to submit any expert proof pertinent to such issue (see Knight v. State of New York, 127 A.D.3d 1435, 1435, 6 N.Y.S.3d 807 [2015], appeal dismissed 25 N.Y.3d 1212, 16 N.Y.S.3d 506, 37 N.E.3d 1148 [2015] ; Trottie v. State of New York, 39 A.D.3d 1094, 1095, 832 N.Y.S.2d 832 [2007] ; Tatta v. State of New York, 19 A.D.3d 817, 818, 797 N.Y.S.2d 588 [2005], lv. denied 5 N.Y.3d 712, 806 N.Y.S.2d 162, 840 N.E.2d 131 [2005] ). Claimant's remaining arguments have been considered and lack merit.
ORDERED that the order is affirmed, without costs.
McCARTHY, J.P., EGAN JR., ROSE and CLARK, JJ., concur.