Claimant's motion for summary judgment in claim alleging assault, medical malpractice and constitutional tort is denied for failure to satisfy initial CPLR 3212 burden as to medical malpractice cause of action; defendant's cross-motion to dismiss assault and constitutional tort causes of action as jurisdictionally defective is granted.
|Claimant(s):||DAVID BROWN, 16-B-1939|
|Claimant short name:||BROWN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended to reflect the proper defendant.|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||DAVID A. BROWN
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Glenn C. King, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 6, 2020|
|See also (multicaptioned case)|
Claimant, an inmate at Clinton Correctional Facility (Clinton), moves for summary judgment in this claim alleging assault by a correction officer, medical malpractice(2) and state and federal constitutional tort. Defendant opposes the claimant's motion and cross-moves to dismiss the assault cause of action as time-barred and the constitutional tort cause of action as beyond the court's jurisdiction.
The claim alleges that on January 4, 2018, while being handcuffed by a Clinton correction officer, claimant was assaulted by the correction officer who, according to claimant, "graps [sic] my 'right' wrist by the hand not the arm wrenching the wrist with force turning it in an unatruel [sic] position as to inflict pain." The claim further alleges that on January 21, 2018, seventeen (17) days after the alleged assault, claimant reported to sick call "due to increasing pain and numbness, and swelling of my wrist." According to the claim, an x-ray report on January 26, 2018, showed "no bone damages." The claim states that claimant returned to "sick call several times complaining of pain and swelling, given basic non aspirin. Physical therapy was ordered." The claim details "10 sessions" of physical therapy for "MILD" symptoms and/or findings regarding strength and range of motion of claimant's right arm.
The claim alleges that due to inadequate medical care and attention to his injury by defendant's nurses over the course of several sick call visits he was not given "reasonable accommodations" for his Clinton work assignments, which allegedly worsened his injury and pain. The claim concludes "that had it not been for the actions of these (2) health care professionals [nurse Bordeau and nurse Tim] he would not have suffered the daily pain endured from repeative [sic] usage of the affected limb, and the extent of damage sustained may not have been as severe."
The standard for review of the motion is well-established. "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]).
Thus, even before the defendant is obligated to respond, the proponent of a motion for summary judgment in a medical malpractice action "must make a prima facie showing of entitlement to judgment as a matter of law" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ).
The substantive law regarding claimant's medical malpractice cause of action is equally clear. It "is well settled that where the State engages in a proprietary function such as providing medical and psychiatric care, it is held to the same duty of care as private individuals and institutions engaged in the same activity" (Rattray v State of New York, 223 AD2d 356, 357 [1st Dept 1996]).
Conclusory allegations of medical malpractice, unsupported by competent evidence establishing its essential elements, are insufficient to state a prima facie case. Through a medical expert, it must be shown that defendant deviated from the standard for good and acceptable care in the locality where the treatment occurred and that the deviation was the proximate cause of the injury (Torns v Samaritan Hosp., 305 AD2d 965, 966 [3d Dept 2003]; Yamin v Baghel, 284 AD2d 778, 779 [3d Dept 2001]; Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]).
Stated succinctly, claimant must prove, through expert medical opinion testimony, two essential elements: (1) a deviation or departure from accepted practice, and (2) that such departure was a proximate cause of plaintiff's injury (Carter v Tana, 68 AD3d 1577, 1579 [3d Dept 2009]).
Claimant has provided no expert medical testimony or competent non-conclusory evidence to demonstrate: The standard of medical care to which he was entitled; that the medical care he was provided was substandard or that it was a deviation from the standard of care owed; or that the medical care which was provided proximately caused the injury he allegedly sustained.
The fact that claimant proceeded pro se does not excuse the need for expert medical opinion to demonstrate a deviation from the applicable standard of care (Duffen v State of New York, 245 AD2d 653, 653-654 [3d Dept 1997], lv denied 91 NY2d 810 ). Claimant has failed to meet his initial summary judgment burden of proof on his medical malpractice cause of action and his motion is denied as to that cause of action.
The defendant's potentially dispositive cross motion to dismiss the claim's assault and constitutional tort causes of action will be considered next.
Defendant argues that the Court lacks jurisdiction over claimant's assault cause of action because neither the claim nor claimant's notice of intention to file a claim was served within ninety days of the accrual of the assault cause of action.
Court of Claims Act 10 (3) provides that:
"A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim."
Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 ).
The claim alleges that the assault cause of action arose on January 4, 2018. According to the exhibits attached to claimant's motion papers, the notice of intention to file a claim was verified on June 13, 2018 and served on the Attorney General on June 18, 2018. The claim was served on the Attorney General on July 26, 2018.
Both the notice of intention to file a claim and the claim were served more than ninety days after accrual of the assault cause of action and, consequently, the Court lacks jurisdiction over the claimant's assault cause of action.
The claim's federal and state constitutional tort cause of action is considered next. Claimant alleges that his federal and state constitutional right to be free from "creul and unusaul [sic] punishment" was violated by the correction officer's alleged assault of claimant.
With respect to the allegation that claimant's federal constitutional rights were violated, the law is settled that "claims for damages against the State based on alleged deprivations of rights under the US Constitution are beyond the jurisdiction of the Court of Claims" (Shelton, 61 AD3d at 1151; see Matter of Gable Transport, Inc. v State of New York, 29 AD3d 1125 [3d Dept 2006]; Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]; Zagarella v State of New York, 149 AD2d 503 [2d Dept 1989]; Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986]).
The Court lacks jurisdiction over the claimant's cause of action alleging violation of his federal constitutional rights.
Claimant's purported cause of action for violation of his state constitutional right to be free from "creul and unusaul [sic] punishment" is beyond the limited jurisdiction of the Court of Claims to adjudicate state constitutional rights and fails to state a cause of action.
The Court of Appeals has recognized a narrowly defined cause of action for a state constitutional tort in the Court of Claims with respect to "violation of the Equal Protection and Search and Seizure Clauses of the State Constitution" (Brown v State of New York, 89 NY2d 172, 188 ).
Subsequent decisional law, however, instructs that this narrow remedy does not apply where claimant has an available alternate legal remedy or forum (Jones v State of New York, 171 AD3d 1362, 1363 [3d Dept 2019], appeal dismissed, 33 NY3d 1056 ; see Martinez v City of Schenectady, 97 NY2d 78, 83-84 ).
The claim's purported state constitutional cause of action for "creul and unusaul [sic] punishment" is simply an alternatively phrased allegation of assault and does not lie as a cognizable constitutional tort in the Court of Claims (Shelton v New York State Liquor Authority, 61 AD3d 1145, 1151 [3d Dept 2009]).
The claim's federal and state constitutional tort cause of action is dismissed.
The claimant's motion for summary judgment as to defendant's liability is denied.
The defendant's cross motion to dismiss the claim's causes of action for assault and for federal and state constitutional tort is granted.
August 6, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Notice of Motion Pursuant to CPLR 3212, Summary Judgment, filed January 23, 2020;
2. Affidavit of David A. Brown, sworn to October 11, 2019, and attached exhibits;
3. Defendant's Notice of Cross Motion for Partial Dismissal, filed February 13, 2020;
4. Affirmation of Glenn C. King, dated February 12, 2020, and attached exhibits;
5. Unsworn Response of David A. Brown, filed February 21, 2020, and attached exhibits.
2. Though claimant refers to his cause of action as "deliberate indifference," the claim's allegations show that claimant asserts that he received negligent medical care rather than a lack of any medical care.