Opinion
# 2019-054-045 Claim No. 131804 Motion No. M-93941
06-20-2019
WILBUR WEEKS v. THE STATE OF NEW YORK
WILBUR WEEKS Pro Se HON. LETITIA JAMES Attorney General for the State of New York By: Belinda A. Wagner, Assistant Attorney General
Synopsis
Summary judgment motion denied in inmate med mal claim due to lack of medical evidence.
Case information
| UID: | 2019-054-045 |
| Claimant(s): | WILBUR WEEKS |
| Claimant short name: | WEEKS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131804 |
| Motion number(s): | M-93941 |
| Cross-motion number(s): | |
| Judge: | WALTER RIVERA |
| Claimant's attorney: | WILBUR WEEKS Pro Se |
| Defendant's attorney: | HON. LETITIA JAMES Attorney General for the State of New York By: Belinda A. Wagner, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 20, 2019 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers numbered 1-2 were read and considered by the Court on claimant's motion for summary judgment:
Notice of Motion, Claimant's Supporting Affidavit and Exhibits.............................1
Attorney's Affirmation in Opposition......................................................................2
Claim No. 131804 alleges that on April 24, 2017, during claimant's incarceration at Eastern NY Correctional Facility, claimant received negligent and inadequate medical care and treatment and suffered pain and mental anguish as a result of defendant's medical malpractice. Claimant also alleges that the State subjected him to cruel and unusual punishment in violation of "New York State Constitution Article 1, § 5" (see Claim, ¶ 18 [c]).
Claimant moves for summary judgment on his claim. Defendant opposes claimant's motion on the ground that, absent any competent medical evidence to support claimant's allegations, claimant has failed to establish entitlement to summary judgment.
Summary judgment is a drastic remedy which should not be granted unless it is made clear by the proponent of the application that there are no genuine issues of material fact (see Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; 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).
Here, to prove that the State failed in its duty to provide claimant with adequate medical care, 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 v State of New York, 289 AD2d 308 [2d Dept 2001]; Kaminsky v State of New York, 265 AD2d 306 [2d Dept 1999]; Kagan v State of New York, 221 AD2d 7, 8 [2d Dept 1996]). Additionally, 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 Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]). Absent any competent medical evidence, either from a treating physician or from an expert whose opinion was based upon claimant's medical records, to support claimant's allegations of medical malpractice, the Court finds that claimant's own unsubstantiated assertions are insufficient to meet claimant's burden of proof (see Wells v State of New York, 228 AD2d 581 [2d Dept 1996]; see Davis v State of New York, 151 AD3d 1411 [3d Dept 2017]; Wood, 45 AD3d 1198). Additionally, to the extent that the claim asserts a cause of action based upon a state constitutional violation, a state constitutional tort claim will not be implied where claimant has an adequate remedy at law (see Martinez v Schenectady, 97 NY2d 78, 83-84 [2001]; Brown v State of New York, 89 NY2d 172, 188 [1996]; Lyles v State of New York, 2 AD3d 694, 696 [2d Dept 2003]).
Accordingly, claimant's motion for summary judgment is DENIED.
June 20, 2019
White Plains, New York
WALTER RIVERA
Judge of the Court of Claims