Opinion
# 2019-041-016 Claim No. 127775 Motion No. M-93454
04-11-2019
JAMES R. MOORE v. THE STATE OF NEW YORK
DAVID P. ELKOVITCH, ESQ. HON. LETITIA JAMES New York State Attorney General By: Douglas R. Kemp, Esq. Assistant Attorney General
Synopsis
Claimant's motion for summary judgment is denied where claimant fails to provide a complete copy of the pleadings and, even assuming claimant had provided complete record, genuine issues of fact exist requiring a trial.
Case information
| UID: | 2019-041-016 |
| Claimant(s): | JAMES R. MOORE |
| Claimant short name: | MOORE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127775 |
| Motion number(s): | M-93454 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | DAVID P. ELKOVITCH, ESQ. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General By: Douglas R. Kemp, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 11, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves pursuant to CPLR 3212 for summary judgment. Defendant opposes the motion.
CPLR 3212 (b) requires that claimant provide a "copy of the pleadings" in support of the motion. A motion for summary judgment is "properly denied in its entirety on that ground alone" (Senor v State of New York, 23 AD3d 851, 852 [3d Dept 2005]; see Bonded Concrete v Town of Saugerties, 3 AD3d 729, 730 [3d Dept 2004], lv dismissed 2 NY3d 793 [2004]).
As set forth above, claimant failed to provide a copy of defendant's answer in support of his summary judgment motion and, even after defendant pointed out the deficiency in its opposition to claimant's motion, claimant failed to provide a copy of the defendant's answer in reply. Even assuming that a movant may lawfully cure an initially defective summary judgment motion by submission of a reply, the record on claimant's motion remains devoid of a copy of the defendant's answer.
The claimant's motion for summary judgment is thus fatally defective.
Further, the record shows that claimant's motion would be denied even if this procedural deficiency had been cured.
The claim alleges that on June 28, 2015 while he was "an inmate at Franklin Correctional Facility . . . he was given the wrong medication [morphine] for which the claimant suffered temporary and permanent injuries."
The Court's role on a motion for summary judgment is well-defined: "A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]; Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 31 AD3d 877 [3d Dept 2006]).
Claimant's own proof raises a genuine issue of material fact, negating any assertion that "the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law" (Ware, 25 AD3d at 864).
The claimant's attorney affirms that the nurse dispensing medications on June 29, 2015 [sic] at Franklin Correctional Facility stated, in a contemporaneously prepared "Medication Occurrence Report," that "she saw [claimant] cut in line and grab and ingest the medicine."
Exhibit E attached to the affirmation of claimant's attorney is the "Medication Occurrence Report," prepared on the date of the incident, which states:
"Inmate Moore . . . wheeled from the [left] side of my window from lab . . . and took the med cup and ingested meds that I had on the window for the next [inmate] in line. [Claimant] cut the line grabbing and ingesting med."
Assuming that claimant had met his initial burden, the summary judgment motion would still be denied.
Summary judgment is "a drastic remedy" (Lebanon Val. Landscaping, Inc. v Town of Moriah, 258 AD2d 732, 733 [3d Dept 1999]). It "is the procedural equivalent of a trial and should be granted only when it has been established that there is no triable issue of material fact" (Harris v State of New York, 187 Misc 2d 512, 517 [Ct Cl 2001]; see Paulin v Needham, 28 AD3d 531 [2d Dept 2006]).
The Court "must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and ascertaining whether there exists any triable issue of fact" (Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]).
The Court's role on a motion for summary judgment is issue finding, not issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; Matter of Hannah UU., 300 AD2d 942, 943 [3d Dept 2002]; Schaufler v Mengel, Metzger, Barr & Co., LLP, 296 AD2d 742, 743 [3d Dept 2002]) and where a genuine issue of fact exists, the motion must be denied (Fleet Bank v Tiger Racquet Fitness and Exercise Center, Inc., 255 AD2d 793, 794 [3d Dept 1998]).
Additionally, defendant offers the deposition testimony of a correction officer familiar with the procedure for dispensing medication, and who was present at the time and location of the incident involving claimant. She explained that the inmates are expected to form a line and show their ID cards "to the nurse through the window" when it is their turn to receive medication.
This testimony, together with the deposition testimony and documentation made by the nurse dispensing medication at the time claimant allegedly "cut the line grabbing and ingesting med," raise genuine issues of material fact requiring a trial.
Viewing the evidence presented on the claimant's summary judgment motion most favorably to the party opposing the motion, as required in assessing a request for summary judgment, the Court finds that the evidence on the motion raises genuine issues of fact requiring a trial.
The claimant's motion for summary judgment is denied.
April 11, 2019
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion, filed January 2, 2019; 2. Affidavit of James R. Moore, sworn to January 9, 2019; 3. Affidavit of Joyce Smith-Moore, sworn to January 16, 2019; 4. Affidavit of David P. Elkovitch, sworn to January 17, 2019, and attached exhibits; 5. Affidavit of David P. Elkovitch, sworn to February 27, 2019, and attached exhibits; 6. Affirmation of Douglas R. Kemp, dated March 8, 2019, and attached exhibit.