Opinion
# 2019-053-501 Claim No. 131629 Motion No. M-93039
01-10-2019
ELMO CRUZ v. THE STATE OF NEW YORK
ELMO CRUZ, Pro Se HON. LETITIA JAMES New York State Attorney General BY: Bernard F. Sheehan, Esq. Assistant Attorney General
Synopsis
A pro se inmate's motion for summary judgment in a claim alleging medical negligence and medical malpractice is denied. Claimant's motion was not supported by a copy of the pleadings and other proof pursuant to CPLR 3212 (b). In the alternative, claimant did not sustain his burden and failed to submit expert evidence that the State deviated from the standard of care to prove causation.
Case information
| UID: | 2019-053-501 |
| Claimant(s): | ELMO CRUZ |
| Claimant short name: | CRUZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended, sua sponte, to reflect the State of New York as the only proper defnedant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131629 |
| Motion number(s): | M-93039 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | ELMO CRUZ, Pro Se |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Bernard F. Sheehan, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 10, 2019 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Elmo Cruz, an inmate proceeding pro se, alleges in claim no. 131629 that he received inadequate medical care while he was incarcerated at Groveland Correctional Facility (Groveland). Claimant alleges causes of action for medical negligence, medical malpractice, deliberate indifference and for violations of constitutional rights under the constitution of the State of New York. Claimant moves for summary judgment. Defendant opposes the motion.
Procedurally, a motion for summary judgment must be supported by an affidavit, by a copy of the pleadings and by other available proof (CPLR 3212 [b]). While claimant submits a statement labeled as an affidavit, it is not notarized by a Notary Public and, therefore, does not qualify as an affidavit (see generally Marcial v The State of New York, UID No. 2016-015-164 [Ct Cl, Collins, J., Oct. 17, 2016]). In addition, claimant only attaches a portion of his claim as filed. The failure of claimant to support his motion with complete copies of the pleadings requires denial of his summary judgment motion, regardless of the merits of the motion (D.J. Enters. of WNY v Benderson, 294 AD2d 825 [4th Dept 2002]). Moreover, claimant fails to submit expert affidavits, deposition transcripts or any evidence to support his motion and essentially only argues that he believes "that there is no defense" to the causes of action alleged in his claim (see ¶5 of claimant's unsworn statement in support of the motion for summary judgment). Although the Court will provide some deference to procedural formalities in a claim involving a pro se claimant, statutory requirements and decisional case law cannot simply be overlooked. Accordingly, on this basis alone, claimant's motion for summary judgment must be dismissed.
In the alternative, even if this Court could overlook claimant's procedural deficiencies, the Court would have reached the same conclusion on the merits. Summary judgment is a drastic remedy and will only be granted where the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 [2012]). The proponent of a summary judgment motion must present facts in evidentiary form sufficient to establish his right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, his motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact. (Alvarez v. Prospect Hosp., supra at 324; Zuckerman v City of New York, supra at 562.). In deciding a summary judgment motion, the Court must view the evidence in a light most favorable to the non-moving party (Haymon v Pettit, 9 NY3d 324 [2007]). Mere conclusions, unsubstantiated allegations or expressions of hope, however, are insufficient to defeat a summary judgment motion. (Zuckerman v City of New York, supra at 562).
Claimant alleges in his claim causes of action for medical negligence and for medical malpractice. There is a subtle distinction between these two causes of action. When, as here, the allegedly wrongful conduct involves medical treatment or bears a substantial relationship to medical treatment, the cause of action is for medical malpractice and not medical negligence (Bleiler v Bodnar, 65 NY2d 65 [1985]). In order to establish a medical malpractice claim, claimant must prove: (1) the standard of care in the locality where the treatment occurred; (2) that defendant breached that standard of care; and (3) that the breach of the standard of care was the proximate cause of injury (James v Wormuth, 21 NY3d 540 [2013]; Berger v Becker, 272 AD2d 565 [2d Dept 2000]). To sustain this burden, claimant must submit expert evidence to establish that the State deviated from the requisite standard of care and that this deviation caused injury (Id. at 565; Reid v Rye Ridge Orthopedic Assoc., 268 AD2d 574 [2d Dept 2000]). Without the requisite expert evidence to establish a deviation from the standard of care and to prove causation, claimant has failed to make a prima facie showing of entitlement to summary judgment whether his claim sounds in medical negligence or in medical malpractice.
Claimant further alleges that the defendant was deliberately indifferent to his medical needs. Such a cause of action would either be subsumed within claimant's medical malpractice claim or could present a United States Constitutional claim under 42 USC § 1983. If the former, claimant's motion for summary judgment would fail for lack of expert proof. If the latter, claimant's motion would also fail as such a cause of action may not be maintained in the Court of Claims (Shelton v New York State Liq. Auth., 61 AD3d 1145 [3d Dept 2009]).
Similarly, claimant has failed to establish entitlement to summary judgment on a claim under the Constitution of the State of New York. The Court of Appeals has recognized a narrow remedy for a violation of a right under the State's constitution (Brown v State of New York, 89 NY2d 172 [1996]). This remedy, however, is only available where no other remedy is feasible (Martinez v City of Schenectady, 97 NY2d 78 [2001]). Here, a claim under the Constitution of the State of New York is neither necessary nor appropriate as claimant has an alternate remedy, i.e., his medical negligence and/or medical malpractice claims. Thus, claimant is not entitled to summary judgment on either a Federal or State Constitutional claim.
Based on the foregoing, claimant's motion no. M-93039 for summary judgment is denied in its entirety.
January 10, 2019
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion dated October 15, 2018 and unsworn "affidavit" of Elmo Cruz with annexed Exhibits; 2. Affirmation in Opposition of Assistant Attorney General Bernard F. Sheehan affirmed December 3, 2018, with annexed Exhibit A.