|Claimant short name:||YOUNG|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The Court has amended the caption sua sponte to reflect the only proper defendant before the Court.|
|Judge:||DEBRA A. MARTIN|
|Claimant's attorney:||ROBERT YOUNG, PRO SE|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: MICHAEL C. RIZZO, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 6, 2021|
|See also (multicaptioned case)|
The following papers have been read on claimant's motion for summary judgment:
1. Notice of Motion for Summary Judgment with Affidavit, Memorandum of Law, Affidavit/Declaration and attachments, filed June 30, 2021;
2. Affirmation of Michael C. Rizzo, AAG, dated July 12, 2021;
3. Correspondence from claimant, filed August 2, 2021;
4. Filed papers: claim.
Pro se claimant has moved for summary judgment in his medical malpractice claim. The claim alleges that in 2013 he did not receive proper medical care from the staff at Upstate Correctional facility after surgery to repair a hernia, for his diabetic condition, and for an infection in his groin. The defendant opposed the motion on the grounds that claimant failed to attach its answer, the Court lacked subject matter jurisdiction over the federal and state constitutional causes of action, and as to his medical malpractice/negligence causes of action, his motion was deficient because it was not supported by an opinion of a medical expert.
Claimant's summary judgment motion must be denied because he failed to comply
with the procedural requirements of CPLR 3212 (b) which requires that a motion for summary judgment be supported by copies of the pleadings (S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341 ). In support of his motion, claimant did not attach a copy of the defendant's answer. "The failure to include pleadings in support of a motion for summary judgment requires that the motion be denied, regardless of the merits of the motion." (Malik v State of New York, UID No. 2008-040-030 [Ct Cl, McCarthy, J., May 13, 2008] [internal citations omitted]; see Greene v Wood, 6 AD3d 976, 976 [3d Dept 2004].)
Even if the motion was not denied for noncompliance with CPLR 3212 (b), it must be denied on the merits because it is well established that a claimant must prove, with admissible evidence, that there are no genuine material facts at issue and, as a matter of law, he is entitled to judgment in his favor. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ; Zuckerman v City of New York, 49 NY2d 557, 562 .) As set forth below, claimant has not met this high burden of proof and his motion must be denied. (Andre v Pomeroy, 35 NY2d 361, 364 .)
The Court's role when reviewing a summary judgment motion, is not "to resolve issues of fact, but to determine whether issues of fact exist." (Garray v State of New York, UID No. 2012-032-033 [Ct Cl, Hard, J., June 29, 2012] [internal citation omitted].) In doing so, 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 [in] ascertaining whether there exists any triable issue of fact." (Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000][internal citation omitted].) Where a genuine issue of fact exists, the motion must be denied. (McFadden v State of New York, UID No. 2012-041-089 [Ct Cl, Milano, J., Oct. 26, 2012].)
Moreover, it has long been held that in order to make a prima facie case for either a medical malpractice or medical negligence case, "[w]here medical issues are not within the ordinary experience and knowledge of lay persons," an expert medical opinion is required. (Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005] lv denied 5 NY3d 712 , quoting Wells v State of New York, 228 AD2d 581, 592 [2d Dept 1996].) "[T]he distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and 'no rigid analytical line separates the two'. " (Weiner v Lenox Hill Hosp., 88 NY2d 784, 787 , quoting Scott v Uljanov, 74 NY2d 673, 674 .) The duty owed to the claimant and whether it was breached by the defendant is the key factor with the distinction between ordinary negligence and medical malpractice turning " 'on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts' (Jeter v New York Presbyt. Hosp., 172 AD3d at 1339, [internal quotation marks omitted]; see Friedmann v New York Hosp.-Cornell Med. Ctr., 65 AD3d 850, 858 ; Halas v Parkway Hosp., 158 AD2d 516, 516-517 ; Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 )." (Rabinovich v Maimonides Med. Ctr., 179 AD3d 88, 93 [2d Dept 2019].) When a claim substantially relates "to medical diagnosis and treatment, the action it gives rise to is by definition one for medical malpractice rather than for simple negligence." (McDonald v State of New York, 13 AD3d 1199, 1200 [4th Dept 2004] [internal quotation marks and citations omitted].) "This is because '[i]ssues concerning whether the treatment deviated from the accepted standard of care and whether it caused injuries are not matters within the ordinary experience and knowledge of laypersons.' (Talley v State of New York, 175 AD3d 1078, 1079 [4th Dept 2019] [internal quotation marks and citations omitted].)" (Lovett v State of New York, UID No 2021-051-004 [Ct Cl, Martin, J., Jan. 28, 2021].)
Here, the Court finds that claimant's detailed allegations that he was not properly diagnosed or treated are within the category of medical malpractice. His failure to attach the opinion of a medical expert is fatal to his motion for summary judgment. (see McCain v State of New York, UID No. 2014-049-035 [Ct Cl, Weinstein, J., June 10, 2014].) The issues raised by claimant are not within the ordinary experience and knowledge of lay persons. Simply attaching his medical records is not enough to demonstrate that defendant's employees breached the standard of care. (see Mims v State of New York, UID No. 2018-038-595 [Ct Cl, DeBow, J., Nov. 27, 2018].) The Court cautions claimant that expert medical testimony will also be required at trial for the same reasons.
The Court agrees with defendant's contentions that it lacks subject matter jurisdiction over claimant's federal and state constitutional causes of action. The Court of Claims lacks subject matter jurisdiction over any Federal Constitutional claims. (Carver v State of New York, 79 AD3d 1393, 1395 [3d Dept 2010]; see Crisp v State of New York, UID No. 2015-040-031 [Ct Cl, McCarthy, J., July 2, 2015].) As to the allegation that defendant violated claimant's rights under the New York State Constitution, "[i]t is now settled that a cause of action for a violation of the N.Y. Constitution may give rise to a tort cause of action where it is necessary to ensure the full realization of the claimant's constitutional rights." (Nuzzulo v State of New York, UID No. 2010-015-179 [Ct Cl, Collins, J., Oct. 14, 2010] citing Martinez v City of Schenectady, 97 NY2d 78, 83  and Brown v State of New York, 89 NY2d 172 .) However, the right is limited and may only be invoked where the claimant does not have an alternate "avenue of redress". (Martinez v City of Schenectady, 97 NY2d at 83 .) "Inasmuch as a private right of action exists for violations of the parallel federal constitutional right pursuant to 42 USC § 1983 (see e.g. Helling v McKinney, 509 US 25, 35 ; Scott v Smith, 104 AD3d 1029 [3d Dept 2013], lv denied 21 NY3d 860 ), a state constitutional tort is not necessary to redress the alleged constitutional violation (see Thomas v State of New York, 10 Misc 3d 1072 [A], 2005 NY Slip Op 52230[U], *3 [Ct Cl 2005]; but see Boggs, 51 Misc 3d at 382)." (Gumbs v State of New York, UID No. 2019-038-113 [Ct Cl, DeBow, J., Sept. 27, 2019].) Therefore, the Court elects to exercise its authority pursuant to CPLR 3212 (b), search the record, and grant summary judgment to the defendant as to any allegations relating to violations of either the federal or state constitutions.
In light of the above, claimant's motion for summary judgment (M-96952) is denied and upon searching the record, defendant is granted summary judgment dismissing the portions of the claim alleging violations of the Federal and New York State constitutions.
October 6, 2021
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims