Opinion
# 2017-050-009 Claim No. 123065 Motion No. M-89690
03-03-2017
ISHEAH YOUNG v. THE STATE OF NEW YORK
Isheah Young, Pro Se Hon. Eric T. Schneiderman, NYS Attorney General By: Michael T. Feeley, Assistant Attorney General
Synopsis
Claimant's motion to strike defendant's answer and for an order of summary judgment is denied. The motion is defective pursuant to CPLR § 3212(b), and does not establish a prima facie case of defendant's liability.
Case information
| UID: | 2017-050-009 |
| Claimant(s): | ISHEAH YOUNG |
| Claimant short name: | YOUNG |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123065 |
| Motion number(s): | M-89690 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Isheah Young, Pro Se |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Michael T. Feeley, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 3, 2017 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claimant moves to strike defendant's answer and for summary judgment. The motion was filed December 22, 2016 and is opposed by the defendant.
Initially, claimant's motion is defective because it fails to include a copy of the pleadings as required under Civil Practice Law and Rules (CPLR) § 3212 (b).
Further, to the extent claimant seeks summary judgment for alleged medical malpractice, the motion lacks both any supporting documents and the opinion of a medical expert. In order to establish a prima facie case of liability in a medical malpractice claim, the claimant must prove (1) the standard of care in the locality where the treatment occurred, (2) that the defendant breached that standard of care, and (3) that the breach of the standard was the proximate cause of injury (see Berger v Becker, 272 AD2d 565 [2d Dept 2000]). Upon a motion for summary judgment by a claimant such as this instant motion, the claimant bears the initial burden of proof which is to demonstrate his entitlement to judgment as a matter of law (see Sabuncu v The State of New York, UID No. 2016-041-037 [Milano, J., June 21, 2016]; Walden Woods Homeowners' Assoc. v Friedman, 36 AD3d 691[2d Dept 2007] citing Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; ). In order to discharge such burden, a claimant must present expert testimony in support of the assertion that the defendant's conduct constituted a deviation from the requisite standard of care (see Berger v Becker, 272 AD2d 565 [2d Dept 2000]; see also, Koster v Davenport, 142 AD3d 966, 968 [2d Dept 2016] lv to appeal denied, 28 NY3d 911 [2016]; ["expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause" [Deadwyler v N. Shore Univ. Hosp. at Plainview, 55 AD3d 780, 781 (2d Dept 2008)]). In that such expert proof is not offered by claimant, claimant has failed to discharge his initial burden of proof and the motion must be denied regardless of the sufficiency of proof in opposition to the motion (see Walden Woods Homeowners' Assoc. v Friedman, 36 AD3d 691[2d Dept 2007] citing Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Although claimant is pro se, he must still comply with the requirements of the CPLR and Court of Claims Act (see Yule v Comerford, 140 AD2d 981, 982 [4th Dept 1988]).
Accordingly, it is
ORDERED that claimant's motion number M-89690 is in all respects denied.
March 3, 2017
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims The following papers were read and considered by the Court on the claimant's motion to strike defendant's answer and for an order of summary judgment: 1. Notice of Motion, Affidavit in Support. 2. Affirmation in Opposition.