Motion for summary judgement denied.
|Claimant short name:||NEYSMITH|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||ALDRICK NEYSMITH
|Defendant's attorney:||HON. LETITIA JAMES
Attorney General for the State of New York
By: Belinda Wagner, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 6, 2021|
|See also (multicaptioned case)|
The following papers numbered 1-2 were read and considered by the Court on claimant's motion for summary judgment and other relief:
Summary Judgment Motion, Son of Sam Motion and NYS Finance Law Motion, Trial Ready Motion, The State Duty to Protect You and Your Property: Tort Actions Motion and Exhibits..................................................................................................1
Attorney's Affirmation in Opposition and Exhibits.................................................2
Claim No. 135598 alleges that claimant received improper medical care during his incarceration from February 12, 2019 through January 17, 2020 and that after his pacemaker and defibrillator were implanted on August 13, 2019, claimant was forced to walk through a magnetic screener at Greene Correctional Facility on unspecified dates which allegedly caused damage to claimant's defibrillator, pacemaker and heart and also caused claimant to suffer other pain and symptoms.
Claimant brings the following request for relief, which he terms as follows:
1. Summary Judgment Motion; 2. Son of Sam Motion; 3. NYS Finance Law Motion; 4. Trial Ready Motion; 5. The State Duty to Protect You and Your Property: Tort Actions Motion. Claimant seeks an award of summary judgment in the amount of nine million dollars for alleged medical malpractice, violation of claimant's 8th Amendment rights and for the violation of New York State Department of Correctional Services and Community Supervision Correctional Law Code Section 70. Additionally, claimant seeks an award of summary judgment that he does not owe any crime victim fee under either the Son of Sam Law or the New York State Finance Law. Claimant also seeks a review of his medical records so that he will receive the appropriate medical care during his incarceration.
The State opposes claimant's request for relief on numerous grounds, including that claimant has not met his burden of establishing entitlement to summary judgment and that claimant's other requests for relief are not available because they do not exist under the CPLR.
Summary judgment is a drastic remedy which should not be granted unless it is made clear by the proponent of the application that there are no genuine issues of material fact (see Andre v Pomeroy, 35 NY2d 361, 364 ). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ; Zuckerman v City of New York, 49 NY2d 557, 562 ). "Failure to make such [a] prima facie showing requires a denial of the motion regardless of the sufficiency of the opposing papers" (Alvarez, 68 NY2d at 324; see Winegrad, 64 NY2d at 853). Additionally, where as here, medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is required to establish that the State's alleged negligence caused or contributed to claimant's alleged injuries (see Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]). Notably absent from claimant's papers is any competent medical evidence, either from a treating physician or from an expert whose opinion was based upon claimant's medical records.
The Court finds that claimant has failed to establish entitlement to summary judgment by tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Davis v State of New York, 151 AD3d 1411 [3d Dept 2017]). The Court also finds that claimant's other requests for relief are not available under the CPLR.
Accordingly, claimant's motion for all the requested relief is DENIED.
October 6, 2021
White Plains, New York
Judge of the Court of Claims