Opinion
# 2016-044-511 Claim No. 120897-A Motion No. M-87557
02-29-2016
TROY McRAE v. THE STATE OF NEW YORK
TROY McRAE, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Michael D. Brown, Assistant Attorney General
Synopsis
Court denied inmate claimant's motion to amend claim without prejudice, and denied claimant's motion for summary judgment in medical malpractice claim due to failure to provide requisite expert evidence.
Case information
| UID: | 2016-044-511 |
| Claimant(s): | TROY McRAE |
| Claimant short name: | McRAE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120897-A |
| Motion number(s): | M-87557 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | TROY McRAE, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Michael D. Brown, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 29, 2016 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
After receiving permission from this Court to late file (McRae v State of New York, UID No. 2011-044-564 [Ct Cl, Schaewe, J., Nov. 29, 2011]), claimant, an inmate proceeding pro se, filed this claim on February 6, 2012 to recover for personal injuries received based upon the alleged failure of defendant State of New York (defendant) to provide timely and adequate medical care to him after he became ill while incarcerated at Elmira Correctional Facility (Elmira). Defendant answered and asserted two affirmative defenses. Claimant now moves to amend the claim and for summary judgment. Defendant opposes the motion.
Claimant's previous motions for summary judgment, for appointment of a medical expert, for assignment of counsel, and to compel disclosure were all denied (McRae v State of New York, Ct Cl, Oct. 25, 2012, Schaewe, J., Claim No. 120897-A, Motion Nos. M-81469, M-81654, M-81655, M-81867). Claimant's subsequent motion for assignment of counsel was also denied (McRae v State of New York, Ct Cl, Feb. 10, 2014, Schaewe, J., Claim No. 120897-A, Motion No. M-84263).
As an initial matter, claimant filed papers with the Clerk of the Court on October 26, 2015 which consisted of both a notice of motion to amend the claim and a notice of motion for summary judgment, as well as supporting affidavits and exhibits. However, claimant's purported affidavit of service of the motion papers was incomplete. By letter dated November 9, 2015, the Court notified the parties that the motions would be adjourned from November 25, 2015 until January 13, 2016 and also provided them with an opportunity to address the issue of service. The Court specifically invited the Attorney General's Office to submit a statement from someone with personal knowledge of the records of the Department of Law.
Because both sets of motion papers were stapled together and appeared to be related, the Clerk of the Court assigned only one motion number (Motion No. M-87557).
Claimant listed all papers allegedly served, but he did not indicate to whom, where or when the documents were mailed.
The Court did not receive any response from either claimant or defendant. It is claimant's burden as the movant on these motions to establish that the motions were properly served upon defendant. In order to establish service, claimant is required to file an affidavit of service with the Clerk of the Court (see Uniform Rules for the Court of Claims [22 NYCRR] § 206.8 [a]). Because claimant has failed to respond to the Court's request for proof of service by filing an appropriate affidavit, these two motions could be denied solely on this procedural basis.
The Court notes that defendant has included as part of Exhibit A to its opposition papers a letter from claimant dated November 17, 2015 and addressed to the Court. In this letter, claimant has "affirmed" under the penalty of perjury that defendant was served with the motion papers at the "[Department] of Law, State Capitol, Albany, N.Y., 12224-0341" on or about October 19, 2015. While claimant may have sent this letter to counsel for defendant, he did not submit the original to the Clerk of the Court as required by the Uniform Rules for the Court of Claims (22 NYCRR) § 206.8 (a) and as directed in the Court's letter dated November 9, 2015. The Court further notes that the "affirmation" is also defective because claimant is not one of the persons authorized to submit an affirmation in lieu of an affidavit (see CPLR 2106).
Notwithstanding that potentially fatal error, defendant has acknowledged receipt on November 23, 2015 of claimant's motion for summary judgment, as evidenced by the attachment of a copy of that motion as part of Exhibit A to its opposition papers. Assistant Attorney General (AAG) Brown has represented that no other motions were received by the Attorney General's Office (Affirmation of AAG Michael D. Brown, dated Dec. 28, 2015, in Opposition to Motion, ¶ 4). In the interest of judicial expedience, the Court will accordingly consider the merits of claimant's motion for summary judgment. However, claimant's failure to file proof of service of his motion to amend with the Court, in combination with defendant's assertion that no other motions were received, must be fatal in this instance. Accordingly, that portion of Motion No. M-87557 which requests permission to amend the claim is denied, without prejudice to claimant making a second motion upon proper papers and proof of service.
The Court notes that this statement would be insufficient to rebut a proper affidavit of service, as it was not made by one with knowledge of the records of the Department of Law, despite the Court's suggestion.
The Court will now address claimant's motion for summary judgment. Initially, it should be noted that the documents received by the Attorney General's Office are to some extent different than those received by the Court. The summary judgment motion received by the Attorney General's Office appears to consist of a notice of motion, affidavit in support of the motion, a statement of material facts "not in dispute," and a memorandum of law. The Court has compared these four documents received by defendant with the summary judgment motion papers filed with the Court, and finds these four documents to be virtually identical. However, claimant has attached several exhibits to the summary judgment motion papers filed with the Court which are not included in the motion papers served upon defendant. Accordingly, the Court will address the merits of the motion for summary judgment by considering only the four documents received by defendant and attached as part of Exhibit A to the opposition papers.
The only differences between the two sets of documents are the dates the motion was to be returnable and the dates of execution of the notices of motion and supporting affidavits.
Claimant is reminded that it is inappropriate to provide documentation to the Court without providing a complete copy to opposing counsel. In other words, claimant is required to serve defendant with all of the same papers that he filed with the Court.
Further, the Court notes that claimant has failed to include a copy of the pleadings which were served in this action and this motion could also be denied solely on this procedural basis (see CPLR 3212 [b]; Greene v Wood, 6 AD3d 976, 977 [3d Dept 2004]). Nevertheless, copies of the pleadings are on file with the Clerk of the Court and have been reviewed by the Court on this motion (see e.g. Stiber v Cotrone, 153 AD2d 1006, 1007 [3d Dept 1989], lv denied 75 NY2d 703 [1990]). Thus, the record is "sufficiently complete" for the Court to overlook claimant's procedural defects and address the merits of the motion (Greene, 6 AD3d at 977; General Motors Acceptance Corp. v Albany Water Bd., 187 AD2d 894, 895 n [3d Dept 1992]).
The proponent of a motion for summary judgment must present facts in evidentiary form which are sufficient to establish that party's right to judgment as a matter of law (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In a cause of action for medical malpractice, the claimant, as moving party, must establish the applicable standard of care to which professionals must adhere in the relevant community, that the defendant deviated from that standard of care, and that such deviation caused the claimant's injury (see Toomey v Adirondack Surgical Assoc., 280 AD2d 754 [3d Dept 2001]; see generally Hoffman v Pelletier, 6 AD3d 889 [3d Dept 2004]; Schuller v Martinelli, 304 AD2d 967 [3d Dept 2003], lv denied 100 NY2d 509 [2003]). With respect to a cause of action for medical negligence, a claimant must submit expert medical evidence to establish that the alleged negligence caused his or her injuries when the pertinent medical issues are "outside the experience and knowledge of a layperson" (Wood v State of New York, 45 AD3d 1198, 1198 [3d Dept 2007]; see also Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005]). If the movant fails to meet his or her initial burden, the motion must be denied regardless of the sufficiency of the opposing papers (see Alvarez, 68 NY2d at 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Ives v Allard Chiropractic Off., 274 AD2d 910, 911 [3d Dept 2000]).
In his affidavit in support of this motion, claimant states that he had an episode of food poisoning and experienced vomiting and bloody diarrhea. He indicates that he sought assistance from both the block correction officer and sergeant, but they waited approximately one hour before getting him out of his cell. He alleges that even though he was in pain and stumbling, neither the officer nor the sergeant assisted him to the infirmary. Claimant states that once he arrived at the infirmary, he was put in a room for two days. During that time, he continued to experience vomiting and bloody diarrhea but alleges that he did not receive any medical treatment or undergo any medical tests. He asserts that after two days, he was discharged from the infirmary without any medication. Claimant repeats this information in his statement of material facts not in dispute.
Claimant's motion for summary judgment must be denied. To the extent that claimant has alleged a cause of action for medical malpractice, he has not provided any expert evidence either of the applicable standard of care for a suspected case of food poisoning or that defendant's failure to provide medical treatment or to conduct tests was a violation of that standard (see Toomey, 280 AD2d at 754-755). Moreover, claimant's failure to provide expert evidence that defendant's alleged breach of that standard or the alleged delay in obtaining treatment for him was a proximate cause of his injuries is fatal with respect to both the medical malpractice and the medical negligence causes of action (see Wood, 45 AD3d at 1198).
Claimant has failed to meet his burden of establishing entitlement to judgment as a matter of law on the causes of action for medical malpractice and medical negligence. Accordingly, that portion of Motion No. M-87557 which seeks summary judgment is denied without regard to defendant's opposition papers (see Winegrad, 64 NY2d at 853). As set forth previously herein, that portion of Motion No. M-87557 which seeks permission to amend the claim is also denied, without prejudice to making a second motion upon proper papers and proof of service.
February 29, 2016
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on claimant's motion: 1) Notice of Motion filed on October 26, 2015; Affidavit of Troy McRae, sworn to on October 14, 2015, and attached exhibits; Memorandum of Law dated October 12, 2015. 2) Affirmation in Opposition of Michael D. Brown, AAG, dated December 28, 2015, and attached exhibit. Filed papers: Claim filed on February 6, 2012; Verified Answer filed on March 21, 2012.