Opinion
# 2015-015-101 Claim No. 123684 Motion No. M-87045
12-03-2015
MELVIN LEWIS v. THE STATE OF NEW YORK
Melvin Lewis, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Douglas R. Kemp, Esquire Assistant Attorney General
Synopsis
Claimant's motion for summary judgment on his causes of action for medical malpractice and medical negligence was denied. Motion was unsupported by expert medical evidence.
Case information
| UID: | 2015-015-101 |
| Claimant(s): | MELVIN LEWIS |
| Claimant short name: | LEWIS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123684 |
| Motion number(s): | M-87045 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Melvin Lewis, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Douglas R. Kemp, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 3, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, proceeding pro se, moves for an Order "[s]triking out Defendant['s] answer and directing the entry of summary judgment in favor of the claimant and against the defendant" pursuant to CPLR 3212.
Claimant seeks damages for defendant's alleged failure to provide adequate medical care for a foot injury he sustained on October 24, 2013 during the course of a work program at Great Meadow Correctional Facility. He also alleges that he was issued ill-fitting boots which contributed to his injuries and resulted in sores and swelling.
It is well settled that "the summary judgment movant bears the heavy burden of establishing 'a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact' " (Deleon v New York City Sanitation Dept., 25 NY3d 1102 [2015], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] CPLR 3212 [b]). Only where the movant has made this showing, does the burden shift to the opposing party "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
The Appellate Division, Third Department, recently summarized the applicable law in Knight v State of New York (127 AD3d 1435, 1435 [3d Dept 2015], appeal dismissed 25 NY3d 1212 [2015]):
"Where an inmate alleges that defendant abdicated its duty to provide adequate medical care, he or she must present competent evidence demonstrating defendant's common-law negligence or that it departed from accepted standards of care and that such deviation was the proximate cause of the sustained injuries . . . . 'Whether the claim is grounded in negligence or medical malpractice, where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical testimony is a required element of a prima facie case' . . ." ([citations omitted]).
Here, the issues regarding the adequacy of the medical treatment provided and whether or not ill-fitting boots contributed to claimant's injuries are not within the ordinary experience and knowledge of lay persons. Consequently, to establish a prima facie case, claimant is required to provide expert medical evidence establishing either a deviation from the applicable standard of medical care or that defendant's ordinary negligence contributed to his injury (see also Lowe v State of New York, 35 AD3d 1281, 1282 [4th Dept 2006]; Myers v State of New York, 46 AD3d 1030, 1031[3d Dept 2007] ; Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005]). Claimant's own conclusory assertions and uncertified medical records fail to establish his prima facie entitlement to summary judgment as a matter of law.
To the extent claimant seeks dismissal of defendant's defenses, defendant has withdrawn its second and sixth defenses asserted in its answer to the amended claim. As claimant moved for summary judgment pursuant to CPLR 3212 rather than for dismissal of defendant's affirmative defenses pursuant to CPLR 3211 (b), the merit of defendant's remaining defenses will not be addressed. In addition, it appears claimant seeks dismissal of the defenses asserted in defendant's first answer, which was superseded by defendant's service of its answer to the amended claim (see Rothberg v Reichelt, 5 AD3d 848, 849 [3d Dept 2004]; Schoenborn v Kinderhill Corp., 98 AD2d 831, 832 [3d Dept 1983]). Notably, defendant raised as its "FIFTEENTH" defense in its answer to the amended claim that the amended claim is a nullity because it was served beyond the time to do so as a matter of right and without leave of court. Whether defendant was prejudiced by the service of the amended claim as alleged in its answer to the amended claim is a threshold issue which has not been addressed by either party (see generally State Univ. Constr. Fund v Aetna Cas. & Sur. Co., 169 AD2d 52 [3d Dept 1991]).
Accordingly, claimant's motion is denied.
December 3, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers: 1. Notice of motion dated July 10, 2015; 2. Affidavit of Melvin Lewis sworn to July 10, 2015 with exhibits; 3. Affirmation of Douglas R. Kemp dated August 27, 2015.