New York State Court of Claims

New York State Court of Claims
ALEX v. THE STATE OF NEW YORK, # 2018-040-013, Claim No. 120984, Motion No. M-91482


State's Motion for Partial Summary Judgment granted.

Case information

UID: 2018-040-013
Claimant(s): JOSEPH ALEX
Claimant short name: ALEX
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 120984
Motion number(s): M-91482
Cross-motion number(s):
Claimant's attorney: HERZFELD & RUBIN, P.C.
By: Howard Edinburgh, Esq.
Defendant's attorney: ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Belinda A. Wagner, Esq., AAG
Third-party defendant's attorney:
Signature date: February 2, 2018
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


For the reasons set forth below, the State's Motion for partial summary judgment seeking dismissal of the Claim as to any negligence and/or medical malpractice alleged to have occurred at SUNY Upstate Medical University is granted.

The Claim, filed in the office of the Clerk of the Court on March 2, 2012, alleges that Claimant was an inmate in the custody of the New York State Department of Corrections and Community Supervision (hereinafter, "DOCCS"), housed at various facilities beginning in May 2008 until his release on October 2, 2009. He alleges that employees of DOCCS and SUNY Upstate Medical University committed medical malpractice and negligence in the care, treatment and diagnosis of his prostate cancer. Pursuant to the Court's Decision and Order granting Claimant permission to serve and file a claim late (Alex v State of New York, UID No. 2011-040-070 [Ct Cl, McCarthy, J., Dec. 2, 2011]), the Court determined that any cause of action that accrued prior to September 7, 2008 was barred by the applicable statute of limitations and that it could only consider negligence that accrued on or after September 7, 2008 (see State's Motion, Ex. J).

The State now moves for partial summary judgment dismissing that portion of the Claim asserting "alleged malpractice and negligence committed by the State through the actions of the physicians and staff at SUNY Upstate Medical University" (Affirmation of Belinda Wagner, Esq., Assistant Attorney General, 2).

In response to the State's Motion, Claimant submitted the Affirmation of Howard Edinburgh, Esq. Counsel avers:

3. After a review of the State's [M]otion, and a further review of the SUNY Upstate hospital chart and consultation with a medical urological expert, we have determined that there is insufficient evidence of malpractice to warrant opposition to the State's [M]otion for partial summary judgment seeking dismissal of the Claim solely as to the SUNY Upstate Medical University defendants. Accordingly, we do not oppose the motion.

Therefore, based upon the foregoing, Defendant's Motion for partial summary judgment is granted and the portion of the Claim that asserts negligence and/or malpractice as to SUNY Upstate Medical University is dismissed.

February 2, 2018

Albany, New York


Judge of the Court of Claims

The following papers were read and considered by the Court on Defendant's Motion:

Papers numbered

Notice of Motion, Affirmation in Support,

and Exhibits attached 1

Affirmation in Response 2

Papers Filed: Claim, Answer