        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

480
CA 11-01784
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


ELBERT WELCH, CLAIMANT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-RESPONDENT.
(CLAIM NO. 113903.)


ELBERT WELCH, CLAIMANT-APPELLANT PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JULIE M. SHERIDAN OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Court of Claims (Philip J. Patti,
J.), entered July 7, 2011. The order, insofar as appealed from,
denied the motion of claimant for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Claimant, an inmate at a correctional facility,
commenced this medical malpractice action alleging that various
employees of defendant and the Niagara County jail failed to diagnose
and treat him for hepatitis C. We conclude that the Court of Claims
properly denied claimant’s motion for summary judgment inasmuch as he
failed to “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
NY2d 851, 853). Specifically, claimant failed to submit the affidavit
of a medical expert stating that, with a reasonable degree of medical
certainty, the expert believed that defendant’s failure to diagnose
and treat claimant in a proper manner was a “ ‘deviation[] from the
accepted standard of medical practice and [was a] substantial factor[]
in causing the late diagnosis and progression’ ” of claimant’s
hepatitis C (Rivera v State of New York, 19 AD3d 1030, 1031).
Contrary to claimant’s contention, the medical issues are not within
the ordinary experience and knowledge of lay persons, and thus the
opinion of a medical expert is required to establish that defendant’s
alleged negligence or deviation from an accepted standard of care
caused or contributed to claimant’s injuries (see Wood v State of New
York, 45 AD3d 1198). Finally, claimant’s contention that the court
erred in denying his motion to strike the affidavit of defendant’s
medical expert is not properly before us on this appeal by claimant
from the order entered July 7, 2011, which denied claimant’s motion
for summary judgment (see State Farm Mut. Auto. Ins. Cos. v Jaenecke,
                                 -2-                         480
                                                       CA 11-01784

81 AD3d 1474, 1475, lv denied 17 NY3d 701).




Entered:   April 26, 2013                     Frances E. Cafarell
                                              Clerk of the Court
