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Mother Of New York Prisoner Awarded $377,200 For Suicide
On March 14, 2005, a court of claims in White Plains, New York, awarded $377,200 to the mother of a suicidal state prisoner who died while in custody.
While serving time at New York's Green Haven Correctional Facility for automobile-related crimes, William E. Newborn Jr. became concerned about the outcome of his upcoming parole review. Consequently, he told a social worker on July 19, 1997, that he would commit suicide if he was not approved. Ten days later his parole was denied. On August 1, 1997, Newborn overdosed on Pamelor--a tricyclic antidepressant--and at least one of three other medications in his possession.
Newborn, who had a history of mental illness and had been under the care of a prison psychiatrist at the time, was transferred to an outside hospital. Over the next 13 days, Newborn experienced occasional awareness while undergoing a number of painful medical procedures--intubation, venal and urinary catheterizations, a tracheotomy. He died on August 13, 1997, from related complications.
Following his death, Newborn's mother, Christine Newborn Arias, sued the state for wrongful death. On May 8, 2003, Judge Stephen Mignano granted summary judgment to Ms. Arias on various claims of negligence, including medical malpractice for providing Newborn a bottle of Pamelor despite a Department of Correctional Service's (DOCS) policy requiring psychotropic medications to be administered by a nurse. [See Arias v. State of New York, 195 Misc.2d 64, 755 N.Y.S.2d 223 (NY Ct. Cl. 2003).]
At the ensuing trial for damages, the Court awarded Ms. Arias a total of $377,200. Referring to testimony provided by Ms. Arias's expert, Dr. Irving Friedman (neurology, psychiatry, and neurophysiology) Mignano concluded that every day between August 1 and August 12, 1997, [Newborn] endured periods of conscious pain and suffering." For this he awarded Arias $350,000.
Next, after determining that Ms. Arias was entitled to $2,200 for funeral expenses, Judge Mignano addressed prison officials' failure to comply with DOCS Directive 4451 and Green Haven's own policy requiring them to notify the next of kin when a prisoner is admitted to an outside hospital. Ms. Arias testified that she was not aware of her son's condition until a priest told her on August 13, 1997, that he had died.
Ms. Arias further testified that had she known of her son's hospitalization, she would have been there to comfort him and that she still felt anger, guilt and grief" for which she required psychological counseling six years later. Based on the totality of the circumstances," Judge Mignano awarded Ms. Arias $25,000 for her personal claim relating to prison officials' failure to notify her.
Judge Mignano declined to award damages for pecuniary loss, however, noting that Newborn had an unstable work history and had in fact never earned enough money in any given year to require him to file a tax return." Ms. Arias was represented by attorneys John D. B. Lewis and Gray E. Divis of Manhattan. See: Arias v. State of New York, White Plains Court of Claims, Case No. 97942.
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While serving time at New York's Green Haven Correctional Facility for automobile-related crimes, William E. Newborn Jr. became concerned about the outcome of his upcoming parole review. Consequently, he told a social worker on July 19, 1997, that he would commit suicide if he was not approved. Ten days later his parole was denied. On August 1, 1997, Newborn overdosed on Pamelor--a tricyclic antidepressant--and at least one of three other medications in his possession.
Newborn, who had a history of mental illness and had been under the care of a prison psychiatrist at the time, was transferred to an outside hospital. Over the next 13 days, Newborn experienced occasional awareness while undergoing a number of painful medical procedures--intubation, venal and urinary catheterizations, a tracheotomy. He died on August 13, 1997, from related complications.
Following his death, Newborn's mother, Christine Newborn Arias, sued the state for wrongful death. On May 8, 2003, Judge Stephen Mignano granted summary judgment to Ms. Arias on various claims of negligence, including medical malpractice for providing Newborn a bottle of Pamelor despite a Department of Correctional Service's (DOCS) policy requiring psychotropic medications to be administered by a nurse. [See Arias v. State of New York, 195 Misc.2d 64, 755 N.Y.S.2d 223 (NY Ct. Cl. 2003).]
At the ensuing trial for damages, the Court awarded Ms. Arias a total of $377,200. Referring to testimony provided by Ms. Arias's expert, Dr. Irving Friedman (neurology, psychiatry, and neurophysiology) Mignano concluded that every day between August 1 and August 12, 1997, [Newborn] endured periods of conscious pain and suffering." For this he awarded Arias $350,000.
Next, after determining that Ms. Arias was entitled to $2,200 for funeral expenses, Judge Mignano addressed prison officials' failure to comply with DOCS Directive 4451 and Green Haven's own policy requiring them to notify the next of kin when a prisoner is admitted to an outside hospital. Ms. Arias testified that she was not aware of her son's condition until a priest told her on August 13, 1997, that he had died.
Ms. Arias further testified that had she known of her son's hospitalization, she would have been there to comfort him and that she still felt anger, guilt and grief" for which she required psychological counseling six years later. Based on the totality of the circumstances," Judge Mignano awarded Ms. Arias $25,000 for her personal claim relating to prison officials' failure to notify her.
Judge Mignano declined to award damages for pecuniary loss, however, noting that Newborn had an unstable work history and had in fact never earned enough money in any given year to require him to file a tax return." Ms. Arias was represented by attorneys John D. B. Lewis and Gray E. Divis of Manhattan. See: Arias v. State of New York, White Plains Court of Claims, Case No. 97942.
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Related legal cases
Arias v. State of New York
| Year | 2005 |
|---|---|
| Cite | White Plains Court of Claims, Case No. 97942 |
| Level | State Trial Court |
| Conclusion | Bench Verdict |
| Attorney Fees | 0 |
| Damages | 377200 |
| Injunction Status | N/A |
Arias v. State of New York
| Year | 2003 |
|---|---|
| Cite | 195 Misc.2d 64, 755 N.Y.S.2d 223 (NY Ct. Cl. 2003) |
| Level | State Trial Court |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
[34] Separate from the State's above asserted negligence, claimant also asserts that the State was negligent in violating DOCS and Green Haven security rules in the distribution of Pamelor to decedent. The DOCS' Employee Manual (Exhibit 8) states:
[35] "Controlled substances are not permitted to be possessed, stored, or consumed in any facility except on a valid order or prescription of a qualified physician. Under no circumstances shall inmates have access to opiates, narcotics, or other substances producing similar effects" and also provides "all employees shall take every precaution to prevent the...misuse of medicine".
[36] The DOCS Standards of Inmate Behavior (Exhibit 10) regulates inmate behavior. Section 113.12 provides that inmates shall not possess any controlled substance. Section 113.14 provides that inmates shall not possess quantities of medication. The evidence has (*11)established that Pamelor is a controlled substance and that on August 1, 1997 decedent was in possession of at least 30 Pamelor pills.
[37] Based upon this record, the Court finds that claimant's submissions in support of its motion for summary judgment on the above-discussed negligence causes of action satisfy the prima facie showing required to warrant judgment as a matter of law if not rebutted by defendant.
[38] Given claimant's prima facie showing, it was incumbent upon the State to submit evidentiary facts or materials sufficient to demonstrate the existence of a triable issue of fact (see, Zuckerman v City of New York, 49 NY2d 557, 562; Alvarez v Prospect Hosp., 68 NY2d 320; Fileccia v Massapequa Gen. Hosp., 63 NY2d 639; Toledo v Ordway, 208 AD2d 518). The State's opposition material relating to the discussed negligence causes of action fails to raise any such triable issue. Thus, the Court finds claimant is entitled to summary judgment as to liability on these causes of action and same is hereby granted.
[39] The Court now turns to claimant's medical malpractice causes of action. Claimant asserts that decedent did not receive proper and adequate medical care at Green Haven prior to his overdose and after he was brought to the medical clinic on August 1, 1997 following his ingesting of the pills.
[40] It is well settled that the State owes a duty to its incarcerated citizens to provide them with adequate medical care (Kagan v State of New York, 221 AD2d 7). Moreover, when the medical care provided by the State includes the provision of psychiatric services, the State will be held to the same duty of care as a private institution engaged in (*12)such activity (Rattray v State of New York, 223 AD2d 356; Amadon v State of New York, 182 AD2d 955, 957).
[41] Thus, when prison authorities know, or should know, that a prisoner has suicidal tendencies, a duty arises to provide reasonable care to assure that such harm does not occur (Gordon v City of New York, 70 NY2d 839).
[42] In support of her motion, claimant has submitted the affirmation of Alan J. Tuckman, M.D., a Board certified physician in psychiatry, neurology and forensic psychiatry. The doctor avers that he has reviewed decedent's OMH and DOCS records, among other documents. In light of the facts set forth in decedent's medical and mental health records, particularly the rejection of his application for parole (which decedent had learned about by July 29), Dr. Tuckman concludes that the defendant's medical staff, which had been treating decedent with antidepressant medications, should have anticipated the likely possibility that he would engage in self-harming, if not suicidal behavior. He opines that defendant's employees should have become extra-responsive to him and vigilant for such behaviors (see Tuckman Affirmation in Support, Paragraph 4).
[43] Claimant also asserts that the delay by the State in rendering medical assistance to her son on August 1, 1997 ultimately lead to his death. In support of this position, Dr. Tuckman avers the likelihood of his death was extremely high due to defendant's delay in treating decedent for the overdose (Tuckman Affirmation in Support, Paragraph 6).
[44] The requisite elements of proof in a medical malpractice action are (a) deviation or departure from accepted practice and (b) evidence that such departure was a proximate (*13)cause of injury or damage (see, Bloom v City of New York, 202 AD2d 465).
[45] The Court finds that Dr. Tuckman's affirmation is bare and conclusory and thus, claimant has failed to establish as a matter of law that she is entitled to judgment in her favor (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Montalbano v North Shore University Hospital, 154 AD2d 579). Dr. Tuckman does not provide sufficient basis for his conclusion that the State's medical personnel should have anticipated the likely possibility decedent would engage in self-harming behavior because of his parole denial. He does not offer an opinion as to how the medical providers should have better responded to decedent's needs.
[46] In addition, Dr. Tuckman does not indicate what protocols should have been followed subsequent to the overdose on August 1, 1997 or how the State's medical personnel deviated from accepted medical practice. He merely asserts that "[g]iven defendant's delay in treating decedent for the overdose, the likelihood of his death was extremely high" (Tuckman Affirmation, Paragraph 6). Thus, the Court finds that claimant has failed to establish her entitlement to judgment as a matter of law on the malpractice causes of action and this portion of claimant's motion is denied.
[47] Claimant also asserts that the State was negligent in failing to notify claimant, decedent's next of kin, of his hospitalization. Exhibit 43, entitled "Outside Hospital Admission - Notification of Person of Inmate's Choice", is a DOCS form which is required to be completed when an inmate is to be admitted to a hospital outside the correctional facility. Nurse Bodzak wrote on the form to be completed by decedent that (*14)he "refused to sign". She then signed and dated the form but did not record the time (see Exhibit 43). Claimant asserts that DOCS Directive #4451 provides that a competent inmate may choose the person who is to be notified but, if the inmate is incompetent, DOCS must determine who to notify (see Exhibit 42).
[48] Claimant asserts that Nurse Bodzak knew of decedent's drug overdose and, inevitably, his consequent impairment when he refused to sign and that at the very moment Bodzak was allegedly seeking to inform decedent of his "right to have or not have one outside person of [his] choice notified [that he was about to be] admitted to an outside hospital", (see Exhibit 43) decedent was undoubtedly experiencing diminished consciousness. However, the evidence submitted does not establish that decedent was experiencing diminished consciousness at the time the nurse presented the form to him. The Court concludes that a factual issue exists as to whether the State was negligent in failing to notify claimant of decedent's hospitalization in accordance with the Outside Hospital Admission - Notification of Person of Inmate's Choice.
[49] An emergency such as an inmate's attempt to commit suicide by drug overdose must be reported in an unusual incident report (hereinafter UIR) within one hour of its occurrence (Exhibit 23). The incident is first telephoned to the DOCS Central Albany office and then memorialized in writing. Based upon the type of incident reported, upper-level DOCS officials determine whether the pertinent procedures, such as those mandated by Directive # 4451 ("Outside Hospital Admission - Notification of Person of Inmate's Choice"), were followed, and, if not, order appropriate action. In the case of decedent's (*15)suicide attempt, the evidence submitted establishes that no timely UIR was filed.
[50] Green Haven employees knew as early as August 4, 1997 that the required UIR had not been filed (see Captain Thacker's memorandum to Lt. Pelc, inquiring, inter alia if a UIR "was done" and for a response "ASAP" as to whether "anything done on overdose?", Exhibit 28). No UIR was filed until decedent's death, itself a separately reportable UIR event.
[51] Yet another institutional check that failed was the Watch Commander's responsibility to follow relevant regulations. This correction official must maintain a log that records unusual incidents and any "escorted outside trip such as...medical [ones]" (Exhibit 32). Decedent's removal by ambulance from Green Haven to St. Francis Hospital was an escorted outside trip. Moreover, this failure occurred notwithstanding Watch Commander Pelc's knowledge that decedent had been transported to the hospital (see Pelc's August 7, 1997 memorandum to Captain Totten, Exhibit 6).
[52] Lt. Pelc's related failure to adhere to Directive # 4451 violated his responsibility to notify decedent's next of kin. Subdivision III-B-1 of this directive sets forth the Watch Commander's responsibilities in the event an inmate is admitted to an outside hospital during "non-business" hours or on a weekend (see Exhibit 42). Decedent was admitted to the hospital on a weekend during a non-business hour (Friday, August 1, 1997, at 5:14 p.m.), which is during Green Haven's 3:00 p.m. to midnight shift. The Watch Commander's next-of-kin notification requirement is separate and distinct from that of the medical department.
[53] (*16)The Court finds that claimant has established that the defendant was negligent in failing to complete a UIR, in not maintaining the Watch Commander's log and in not notifying claimant of decedent's admission to an outside hospital on a weekend during a non-business hour. Therefore, the Court finds that claimant is entitled to summary judgment as to liability on this cause of action and this portion of the motion is granted
[54] Finally, the State asserts that the issue of decedent's contributory negligence precludes the granting of summary judgment in this case. This issue is an affirmative defense and the burden of proof is upon defendant to establish a question of fact exists as to this issue. The issue of contributory negligence in a suicide case is whether based upon the entire testimony presented, the trier of facts concludes the injured person was able to control his actions (Padula v State of New York, 48 NY2d 366; Mochen v State of New York, 43 AD2d 484, 487). The standard of care which a mentally ill patient must exercise to protect himself is not based upon the objective standards of a reasonable person, but rather it is based upon the capacity of the patient and his perception of danger, considering the degree of his illness (Horton v Niagara Falls Memorial Medical Center, 51 AD2d 152).
[55] General allegations, merely conclusory in nature and unsupported by competent evidence are insufficient to defeat claimant's entitlement to summary judgment (see, Alvarez v Prospect Hosp., 68 NY2d 320; Toledo v Ordway, 208 AD2d 518). Defendant has submitted only the affirmation of its counsel. This affirmation by defense counsel is not based upon personal knowledge of the essential facts and is thus insufficient to defeat (*17)a motion for summary judgment (Caramanica v State Farm Fire and Cas. Co., 110 AD2d 869). There is no affidavit of a medical expert submitted to establish that decedent was not so mentally impaired that he was able to control his own actions (see Padula v State of New York, supra). Thus, the Court concludes that the State has failed to establish a question of fact as to decedent's contributory negligence and therefore, this issue does not preclude the granting of summary judgment as set forth herein.
[56] Therefore, in accordance with the foregoing, claimant's motion for summary judgment as to liability is denied in part and granted in part. The liability portion of the trial of the remaining issues will be held as previously scheduled on February 4, 2003.
[57] The following papers were read and considered by the Court on claimant's motion for summary judgment as to liability:
[58] Papers Numbered
[59] Order to Show Cause, Affirmation of Counsel, Claimant's Affidavit, Physician's Affirmation and Exhibits 1
[60] Affirmation in Opposition 2
[61] Reply Affirmation 3
[62] (*18) Filed Papers: Claim, Amended Claim, Answer and Amended Answer
[35] "Controlled substances are not permitted to be possessed, stored, or consumed in any facility except on a valid order or prescription of a qualified physician. Under no circumstances shall inmates have access to opiates, narcotics, or other substances producing similar effects" and also provides "all employees shall take every precaution to prevent the...misuse of medicine".
[36] The DOCS Standards of Inmate Behavior (Exhibit 10) regulates inmate behavior. Section 113.12 provides that inmates shall not possess any controlled substance. Section 113.14 provides that inmates shall not possess quantities of medication. The evidence has (*11)established that Pamelor is a controlled substance and that on August 1, 1997 decedent was in possession of at least 30 Pamelor pills.
[37] Based upon this record, the Court finds that claimant's submissions in support of its motion for summary judgment on the above-discussed negligence causes of action satisfy the prima facie showing required to warrant judgment as a matter of law if not rebutted by defendant.
[38] Given claimant's prima facie showing, it was incumbent upon the State to submit evidentiary facts or materials sufficient to demonstrate the existence of a triable issue of fact (see, Zuckerman v City of New York, 49 NY2d 557, 562; Alvarez v Prospect Hosp., 68 NY2d 320; Fileccia v Massapequa Gen. Hosp., 63 NY2d 639; Toledo v Ordway, 208 AD2d 518). The State's opposition material relating to the discussed negligence causes of action fails to raise any such triable issue. Thus, the Court finds claimant is entitled to summary judgment as to liability on these causes of action and same is hereby granted.
[39] The Court now turns to claimant's medical malpractice causes of action. Claimant asserts that decedent did not receive proper and adequate medical care at Green Haven prior to his overdose and after he was brought to the medical clinic on August 1, 1997 following his ingesting of the pills.
[40] It is well settled that the State owes a duty to its incarcerated citizens to provide them with adequate medical care (Kagan v State of New York, 221 AD2d 7). Moreover, when the medical care provided by the State includes the provision of psychiatric services, the State will be held to the same duty of care as a private institution engaged in (*12)such activity (Rattray v State of New York, 223 AD2d 356; Amadon v State of New York, 182 AD2d 955, 957).
[41] Thus, when prison authorities know, or should know, that a prisoner has suicidal tendencies, a duty arises to provide reasonable care to assure that such harm does not occur (Gordon v City of New York, 70 NY2d 839).
[42] In support of her motion, claimant has submitted the affirmation of Alan J. Tuckman, M.D., a Board certified physician in psychiatry, neurology and forensic psychiatry. The doctor avers that he has reviewed decedent's OMH and DOCS records, among other documents. In light of the facts set forth in decedent's medical and mental health records, particularly the rejection of his application for parole (which decedent had learned about by July 29), Dr. Tuckman concludes that the defendant's medical staff, which had been treating decedent with antidepressant medications, should have anticipated the likely possibility that he would engage in self-harming, if not suicidal behavior. He opines that defendant's employees should have become extra-responsive to him and vigilant for such behaviors (see Tuckman Affirmation in Support, Paragraph 4).
[43] Claimant also asserts that the delay by the State in rendering medical assistance to her son on August 1, 1997 ultimately lead to his death. In support of this position, Dr. Tuckman avers the likelihood of his death was extremely high due to defendant's delay in treating decedent for the overdose (Tuckman Affirmation in Support, Paragraph 6).
[44] The requisite elements of proof in a medical malpractice action are (a) deviation or departure from accepted practice and (b) evidence that such departure was a proximate (*13)cause of injury or damage (see, Bloom v City of New York, 202 AD2d 465).
[45] The Court finds that Dr. Tuckman's affirmation is bare and conclusory and thus, claimant has failed to establish as a matter of law that she is entitled to judgment in her favor (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Montalbano v North Shore University Hospital, 154 AD2d 579). Dr. Tuckman does not provide sufficient basis for his conclusion that the State's medical personnel should have anticipated the likely possibility decedent would engage in self-harming behavior because of his parole denial. He does not offer an opinion as to how the medical providers should have better responded to decedent's needs.
[46] In addition, Dr. Tuckman does not indicate what protocols should have been followed subsequent to the overdose on August 1, 1997 or how the State's medical personnel deviated from accepted medical practice. He merely asserts that "[g]iven defendant's delay in treating decedent for the overdose, the likelihood of his death was extremely high" (Tuckman Affirmation, Paragraph 6). Thus, the Court finds that claimant has failed to establish her entitlement to judgment as a matter of law on the malpractice causes of action and this portion of claimant's motion is denied.
[47] Claimant also asserts that the State was negligent in failing to notify claimant, decedent's next of kin, of his hospitalization. Exhibit 43, entitled "Outside Hospital Admission - Notification of Person of Inmate's Choice", is a DOCS form which is required to be completed when an inmate is to be admitted to a hospital outside the correctional facility. Nurse Bodzak wrote on the form to be completed by decedent that (*14)he "refused to sign". She then signed and dated the form but did not record the time (see Exhibit 43). Claimant asserts that DOCS Directive #4451 provides that a competent inmate may choose the person who is to be notified but, if the inmate is incompetent, DOCS must determine who to notify (see Exhibit 42).
[48] Claimant asserts that Nurse Bodzak knew of decedent's drug overdose and, inevitably, his consequent impairment when he refused to sign and that at the very moment Bodzak was allegedly seeking to inform decedent of his "right to have or not have one outside person of [his] choice notified [that he was about to be] admitted to an outside hospital", (see Exhibit 43) decedent was undoubtedly experiencing diminished consciousness. However, the evidence submitted does not establish that decedent was experiencing diminished consciousness at the time the nurse presented the form to him. The Court concludes that a factual issue exists as to whether the State was negligent in failing to notify claimant of decedent's hospitalization in accordance with the Outside Hospital Admission - Notification of Person of Inmate's Choice.
[49] An emergency such as an inmate's attempt to commit suicide by drug overdose must be reported in an unusual incident report (hereinafter UIR) within one hour of its occurrence (Exhibit 23). The incident is first telephoned to the DOCS Central Albany office and then memorialized in writing. Based upon the type of incident reported, upper-level DOCS officials determine whether the pertinent procedures, such as those mandated by Directive # 4451 ("Outside Hospital Admission - Notification of Person of Inmate's Choice"), were followed, and, if not, order appropriate action. In the case of decedent's (*15)suicide attempt, the evidence submitted establishes that no timely UIR was filed.
[50] Green Haven employees knew as early as August 4, 1997 that the required UIR had not been filed (see Captain Thacker's memorandum to Lt. Pelc, inquiring, inter alia if a UIR "was done" and for a response "ASAP" as to whether "anything done on overdose?", Exhibit 28). No UIR was filed until decedent's death, itself a separately reportable UIR event.
[51] Yet another institutional check that failed was the Watch Commander's responsibility to follow relevant regulations. This correction official must maintain a log that records unusual incidents and any "escorted outside trip such as...medical [ones]" (Exhibit 32). Decedent's removal by ambulance from Green Haven to St. Francis Hospital was an escorted outside trip. Moreover, this failure occurred notwithstanding Watch Commander Pelc's knowledge that decedent had been transported to the hospital (see Pelc's August 7, 1997 memorandum to Captain Totten, Exhibit 6).
[52] Lt. Pelc's related failure to adhere to Directive # 4451 violated his responsibility to notify decedent's next of kin. Subdivision III-B-1 of this directive sets forth the Watch Commander's responsibilities in the event an inmate is admitted to an outside hospital during "non-business" hours or on a weekend (see Exhibit 42). Decedent was admitted to the hospital on a weekend during a non-business hour (Friday, August 1, 1997, at 5:14 p.m.), which is during Green Haven's 3:00 p.m. to midnight shift. The Watch Commander's next-of-kin notification requirement is separate and distinct from that of the medical department.
[53] (*16)The Court finds that claimant has established that the defendant was negligent in failing to complete a UIR, in not maintaining the Watch Commander's log and in not notifying claimant of decedent's admission to an outside hospital on a weekend during a non-business hour. Therefore, the Court finds that claimant is entitled to summary judgment as to liability on this cause of action and this portion of the motion is granted
[54] Finally, the State asserts that the issue of decedent's contributory negligence precludes the granting of summary judgment in this case. This issue is an affirmative defense and the burden of proof is upon defendant to establish a question of fact exists as to this issue. The issue of contributory negligence in a suicide case is whether based upon the entire testimony presented, the trier of facts concludes the injured person was able to control his actions (Padula v State of New York, 48 NY2d 366; Mochen v State of New York, 43 AD2d 484, 487). The standard of care which a mentally ill patient must exercise to protect himself is not based upon the objective standards of a reasonable person, but rather it is based upon the capacity of the patient and his perception of danger, considering the degree of his illness (Horton v Niagara Falls Memorial Medical Center, 51 AD2d 152).
[55] General allegations, merely conclusory in nature and unsupported by competent evidence are insufficient to defeat claimant's entitlement to summary judgment (see, Alvarez v Prospect Hosp., 68 NY2d 320; Toledo v Ordway, 208 AD2d 518). Defendant has submitted only the affirmation of its counsel. This affirmation by defense counsel is not based upon personal knowledge of the essential facts and is thus insufficient to defeat (*17)a motion for summary judgment (Caramanica v State Farm Fire and Cas. Co., 110 AD2d 869). There is no affidavit of a medical expert submitted to establish that decedent was not so mentally impaired that he was able to control his own actions (see Padula v State of New York, supra). Thus, the Court concludes that the State has failed to establish a question of fact as to decedent's contributory negligence and therefore, this issue does not preclude the granting of summary judgment as set forth herein.
[56] Therefore, in accordance with the foregoing, claimant's motion for summary judgment as to liability is denied in part and granted in part. The liability portion of the trial of the remaining issues will be held as previously scheduled on February 4, 2003.
[57] The following papers were read and considered by the Court on claimant's motion for summary judgment as to liability:
[58] Papers Numbered
[59] Order to Show Cause, Affirmation of Counsel, Claimant's Affidavit, Physician's Affirmation and Exhibits 1
[60] Affirmation in Opposition 2
[61] Reply Affirmation 3
[62] (*18) Filed Papers: Claim, Amended Claim, Answer and Amended Answer