                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: April 7, 2016                       516028
________________________________

REGINALD G. McFADDEN,
                    Appellant,
      v                                       MEMORANDUM AND ORDER

STATE OF NEW YORK,
                    Respondent.
________________________________


Calendar Date:   February 8, 2016

Before:   McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.

                               __________


     Reginald G. McFadden, Attica, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Allyson B.
Levine of counsel), for respondent.

                               __________


Devine, J.

      Appeal from an order of the Court of Claims (Milano, J.),
entered December 12, 2012, which denied claimant's motion for
partial summary judgment.

      Claimant, an inmate, commenced this action contending that
correction officers used excessive force and assaulted him in
three successive incidents that occurred during a single day. He
further asserts that defendant thereafter failed to provide him
with appropriate medical care. He moved for partial summary
judgment on the issue of liability. The Court of Claims denied
the motion and claimant appeals.

      We affirm. "Summary judgment is a drastic remedy, to be
granted only where the moving party has tendered sufficient
evidence to demonstrate the absence of any material issues of
                              -2-                516028

fact and then only if, upon the moving party's meeting of this
burden, the non-moving party fails to establish the existence of
material issues of fact which require a trial of the action"
(Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal
quotation marks, brackets and citations omitted]; see Lacasse v
Sorbello, 121 AD3d 1241, 1241-1242 [2014]). Claimant stated in
his affidavit that he was subjected to three separate unprovoked
attacks by correction officers within a short period of time
causing injuries for which he was sent to a hospital outside the
facility. In opposition to the motion, defendant submitted
affidavits by correction officers involved in the events at
issue, and those individuals relay a markedly different version
of events. They state that a handheld metal detector indicated
that claimant had metal near his groin, after which claimant was
escorted without incident to the facility hospital for a body
orifice security scan. Once there, claimant suddenly attempted
to flee the area. He was subdued following a struggle with the
officers, after which a homemade metal weapon was discovered on
the floor. Viewed in the light most favorable to defendant as
the nonmovant (see Barrett v Watkins, 82 AD3d 1569, 1571 [2011];
Encarnacion v State of New York, 49 AD3d 1038, 1039 [2008]),
there are triable issues as to what transpired and whether the
force employed by the officers was reasonable.

      With respect to claimant's contention that defendant caused
additional injuries to him by failing to follow proper medical
protocols when he returned from the outside hospital, claimant
did not meet his prima facie burden in that he failed to submit
any expert proof pertinent to such issue (see Knight v State of
New York, 127 AD3d 1435, 1435 [2015], appeal dismissed 25 NY3d
1212 [2015]; Trottie v State of New York, 39 AD3d 1094, 1095
[2007]; Tatta v State of New York, 19 AD3d 817, 818 [2005], lv
denied 5 NY3d 712 [2005]). Claimant's remaining arguments have
been considered and lack merit.

     McCarthy, J.P., Egan Jr., Rose and Clark, JJ., concur.
                        -3-                  516028

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
