Opinion
# 2912-015-298 Claim No. 118304 Motion No. M-80586
02-10-2012
RUGGIERO v. THE STATE OF NEW YORK
Synopsis
Pro se inmate's motion to reargue order denying his motion for summary judgment on his medical negligence claim was denied. Case information
UID: 2912-015-298 Claimant(s): ANTHONY RUGGIERO Claimant short name: RUGGIERO Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 118304 Motion number(s): M-80586 Cross-motion number(s): Judge: FRANCIS T. COLLINS Claimant's attorney: Anthony Ruggiero, Pro Se Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: By: Joan Matalavage, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: February 10, 2012 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant moves pursuant to CPLR 2221 (e) for leave to renew his prior motion for summary judgment on his fifth cause of action alleging medical negligence.
By Decision and Order filed November 17, 2010, this Court denied claimant's motion for summary judgment with respect to his cause of action alleging medical negligence and granted the motion on the issue of liability with respect to his cause of action alleging excessive wrongful confinement for the period November 10, 2009 through December 10, 2009.Claimant thereafter sought discovery from the defendant, which included the service of various interrogatories and notices to admit. Claimant seeks to renew his prior summary judgment motion with respect to his medical negligence cause of action based upon newly discovered evidence which was unavailable when the prior motion was made.
Upon searching the record, the Court dismissed claimant's wrongful confinement cause of action for the period preceding November 10, 2009.
Claimant's fifth cause of action, denominated as one for medical negligence, alleges that upon his arrival in the Special Housing Unit at Southport Correctional Facility on November 13, 2009 the pain medication previously prescribed by Dr. Thompson at Great Meadow Correctional Facility for his spinal condition was arbitrarily reduced and, for a brief time, discontinued. He alleges in the claim that he was "medically screened" by RN Weed who he informed of his spinal condition, however:
"[b]efore claimant or his medical chart was examined by a Doctor at Southport: Claimant was arbitrarily denied half of his prescribed pain medication. The Tramadol was cut to 50 mgs. 3 x a day from November 13, 2009 until Friday November 20, 2009. It was then discontinued altogether. Claimant was seen by the facility Doctor on Mon. November 23, 2009 and the Doctor re-prescribed the Tramadol 100 mgs. 3 x a day, which did not resume until Wed. nite of November 25, 2009."
Quoted excerpt is uncorrected.
In addition to copies of the pleadings and prior summary judgment motion, claimant submits certified medical records including MRI examinations of his cervical and lumbar spine (claimant's Exhibit F), defendant's unsworn Reply To Notice To Admit directed to Dr. Thompson (claimant's Exhibit G); defendant's unsworn Response To Interrogatories purportedly answered by Nurse Diane Weed (claimant's Exhibit H); defendant's unsworn Reply To Notice To Admit directed to Nurse Diane Weed (claimant's Exhibit I); defendant's Response To Claimant's Notice For Discovery And Inspection in which defendant objected to claimant's request for a certain medical record (claimant's Exhibit J); claimant's Notice To Admit Truth Of Facts directed to Dr. Wesley Canfield to which the defendant failed to respond (claimant's Exhibit K); claimant's interrogatories directed to Dr. Wesley Canfield, and defendant's unsworn response thereto (claimant's Exhibit L).
"[A] motion to renew must be based upon newly discovered evidence which existed at the time the prior motion was made, but was unknown to the party seeking renewal, along with a justifiable excuse as to why the new information was not previously submitted" (2 N. St. Corp. v Getty Saugerties Corp., 68 AD3d 1392, 1396 [2009] [internal quotations marks and citations omitted]; CPLR 2221 [e] [2] and [3]; see also Khan v Levy, 52 AD3d 928, 929-930 [2008]; Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303 [2007]).
Claimant's renewal motion must be denied. The newly discovered evidence submitted by claimant consists of discovery which was neither requested nor provided before the date of the claimant's motion for summary judgment. This is not the sort of "newly discovered" evidence required for purposes of a motion to renew and the claimant failed to provide a justifiable excuse for failing to submit the evidence previously.
Even if the Court were to consider the evidence submitted, summary judgment is unwarranted. "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] [internal quotations marks omitted]). The newly discovered evidence claimant relies upon here, defendant's unsworn answers to claimant's interrogatories and defendant's responses to his notices to admit, are insufficient to establish his entitlement to summary judgment as a matter of law.
Notwithstanding the requirements of CPLR 3133 (b), defendant failed to provide sworn answers to claimant's interrogatories directed to both Nurse Weed and Dr. Wesley Canfield. As a result, these responses are inadmissible and of no probative value (see Zuckerman v City of New York, supra). In any event, neither defendant's answers to claimant's interrogatories nor its deemed admissions to claimant's notices to admitestablish claimant's entitlement to summary judgment.
The facts set forth in claimant's notices to admit are deemed admitted pursuant to CPLR 3123 (a) to the extent defendant failed to provided timely sworn responses thereto (claimant's Exhibit G, I and K).
The allegations in the claimant's fifth cause of action mostly relate to an inappropriate reduction in the dosage of claimant's medication upon his admission to the SHU at Southport. Inasmuch as this allegation relates entirely to the skill and judgment of his treating professionals, it alleges a medical malpractice cause of action (Maki v Bassett Healthcare, 85 AD3d 1366 [2011]; Wood v State of New York, 45 AD3d 1198 [2007], supra). Competent medical evidence establishing a deviation from the applicable standard of care is therefore required to establish his prima facie entitlement to summary judgment (cf. Toth v Community Hosp. at Glen Cove, 22 NY2d 255, 262 [1968] [evidence that a physician conformed to accepted community standards of practice usually insulates him from liability]). No such evidence was provided here.
Likewise, to the extent the claim may be interpreted as alleging a ministerial failure to dispense prescribed medications, claimant was required to establish through the submission of admissible evidence that correction personnel failed to dispense prescribed medication (see 7 NYCRR 302.2 [e] [1] [iv]) and that this failure was a proximate cause of his injuries (Wood v State of New York, 45 AD3d 1198 [2007]; Trottie v State of New York, 39 AD3d 1094 [2007]; Lowe v State of New York, 35 AD3d 1281 [2006]; Tatta v State of New York, 19 AD3d 817 [2005]). Again, no such evidence was provided.
Based on the foregoing, claimant's motion is denied.
February 10, 2012
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Notice of motion dated October 27, 2011;
2. Affidavit of Anthony Ruggiero sworn to October 27, 2011 with exhibits;
3. Affidavit of Joan Matalavage sworn to November 29, 2011 with exhibit;
4. Letter reply of Anthony Ruggiero dated December 4, 2011 with exhibits.