Marsh v. State, 2021-51153

CourtNew York Court of Claims
PartiesMichael Marsh, Claimant, v. The State of New York, Defendant.
Docket Number2021-51153,Claim 130166
Decision Date06 December 2021

Michael Marsh, Claimant,

The State of New York, Defendant.

No. 2021-51153

Claim No. 130166

Court of Claims

December 6, 2021

Unpublished Opinion

For Claimant: NAPOLI SHKOLNIK, PLLC By: Craig Phemister, Esq.

For Defendant: HON. LETITIA JAMES Attorney General for the State of New York By: Joseph E. Scolavino, Assistant Attorney General


The following papers numbered 1-3 were read and considered by the Court on the State's Motion for Summary Judgment:

Notice of Motion, State's Attorney's Supporting Affirmation, Exhibits and Memorandum of Law 1

Attorney's Affirmation in Opposition, and Exhibits 2

State's Attorney's Affirmation in Sur-Reply 3

The claim alleges that on January 14, 2016, claimant was injured when his leg gave out and he fell walking down the stairs at Sing Sing Correctional Facility (Sing Sing), where he was incarcerated. [1] The State moves for summary judgment and dismissal of the claim, arguing that treatment of claimant's reported lower-back pain and placement of him on the third floor did not breach its duty of care and did not proximately cause his injury. In opposition, claimant argues that the evidence shows the State had a duty to place him on the first floor as it was foreseeable that he was at risk of falling down the stairs because of his medical condition, and disputed issues of material fact require denial of the motion.

"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). "Failure to make such [a] prima facie showing requires a denial of the motion regardless of the sufficiency of the opposing papers" (Alvarez, 68 N.Y.2d at 324; see Winegrad, 64 N.Y.2d at 853). Once this burden has been met, the party opposing such motion must" 'show facts sufficient to require a trial of any issue of fact'" (Zuckerman, 49 N.Y.2d at 562, quoting CPLR 3212 [b]). The issues raised on a summary judgment motion are to be considered" 'in the light most favorable to the non-moving party'" (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012], quoting Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335, 340 [2011]).

A summary judgment motion must be supported by an affidavit of a person having knowledge of the facts, together with a copy of the pleadings and other available proof (S. J. Capelin Assoc. v Globe Mfg. Corp., 34 N.Y.2d 338, 341 [1974]; see CPLR 3212 [b]). The affidavit "shall recite all the material facts" and where the motion is brought by the defense, it "shall show that... the cause of action has no merit" (CPLR 3212 [b]).

The instant motion is supported by an Affirmation of Assistant Attorney General Joseph E. Scolavino (Scolavino Aff.), copies of the pleadings (Exs. A-C), claimant's deposition transcript (Ex. E), and a certified copy of claimant's medical records maintained by the New York State Department of Corrections and Community Supervision (DOCCS) (Ex. D). Claimant's Opposition is supported by an Affirmation of Craig Phemister, Esq. (Phemister Aff.), copies of Claimant's Verified Bill of Particulars (Ex. 1), DOCCS Ambulatory Health Records (Ex. 2), Grievances (Exs. 3-6), and a Certification for the DOCCS records (Ex. 7). The State submitted a Sur-Reply in response to the opposition. [2]

The State did not submit an affidavit as required by CPLR 3212 (b), but claimant does not raise the lack of an affidavit in his opposition. In any event, CPLR 105 (u) provides that a verified pleading may be used as an affidavit. In that regard, the verified claim (Ex. A, ¶ 2) makes the following allegations of fact:

"On or about January 14, 2016, claimant was on his way to sick call at approximately 5:30-6:00 am within the Sing Sing Correctional Facility from A Block, K company, 50 cell As he descended the stairs, upon turning onto J Company while holding onto the railing, he was caused to fall down the stairs when his right leg gave out due to prior severe lower back pain radiating into his legs
For several months prior to January 14, 2016, claimant had severe and chronic lower back pain radiating down his right leg - causing it to give out on occasion. Claimant made these complaints to medical staff within Sing Sing on numerous occasions, was being treated for this condition at Sing Sing, and requested that he either be moved to the same floor level as his medical appointments, or be given assistance in ambulating down the stairs such as a cane, a walker, or a person to assist him while descending the stairs. These requests were ignored and/or denied. Claimant was forced to remain in a cell on an upper level and required to use multiple flights of stairs on a daily basis without the assistance of a walking device, despite his prior complaints and requests for same."

The claim also alleges that as a result of the fall, claimant "sustained injuries and exacerbated pre-existing injuries to his lower back, head, neck, right leg and right hip [... and] was required to undergo a surgical procedure to his lower back" (Ex. A at 5).

"Having assumed physical custody of [incarcerated persons], who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard [them]" (Sanchez v State of New York, 99 N.Y.2d 247, 252-253 [2002]). That duty does not, however, render the State an insurer of incarcerated persons' safety. Like other duties in tort, the scope of the State's duty to protect incarcerated persons is limited to risks of harm that are reasonably foreseeable (id.; see Villar v Howard, 28 N.Y.3d 74, 80 [2016] [finding facility need not foresee specific harm]). The State also owes a duty of ordinary care to provide its charges with adequate medical care (see Mullally v State of New York, 289 A.D.2d 308, 308 [2d Dept 2001]; Kagan v State of New York, 221 A.D.2d 7, 8 [2d Dept 1996]). To prove that the State failed in its duty and committed medical malpractice, a claimant must establish by a preponderance of the evidence that the State departed from good and accepted standards of care and that such departure was a substantial factor or a proximate cause of the alleged injuries (see Mullally, 289 A.D.2d at 308; Kaminsky v State of New York, 265 A.D.2d 306, 306 [2d Dept 1999]).

The instant motion focuses entirely on common law negligence, even though the Note of Issue indicates this is a medical malpractice action. [3] Nonetheless, Assistant Attorney General Joseph E. Scolavino explains in his affirmation that, "at the Trial Preparation Conference, counsel for Claimant, Craig Phemister, Esq., maintained that this was not, in fact a medical malpractice nor medical negligence action, but an ordinary negligence action" (see Scolavino Aff., ¶¶ 6-8). [4] Regardless of what claimant's attorney might have said at the conference, "[w]hether the claim is grounded in negligence or medical malpractice, where there are medical issues raised by the facts and they 'are...

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