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

748
CA 15-01669
PRESENT: PERADOTTO, J.P., DEJOSEPH, TROUTMAN, AND SCUDDER, JJ.


RICHARD T. ANDREWS,
PLAINTIFF-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

COUNTY OF CAYUGA,
DEFENDANT-APPELLANT-RESPONDENT.


THE LAW FIRM OF FRANK W. MILLER, EAST SYRACUSE (RICHARD J. GRAHAM OF
COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT.

KUEHNER LAW FIRM, PLLC, SYRACUSE, D.J. & J.A. CIRANDO, ESQS. (JOHN A.
CIRANDO OF COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court,
Cayuga County (Mark H. Fandrich, A.J.), entered February 5, 2015.   The
order denied plaintiff’s motion for partial summary judgment and
denied defendant’s cross motion for dismissal and partial summary
judgment.

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

     Memorandum: As we explained on a prior appeal, “[p]laintiff
commenced this action seeking damages for injuries he sustained while
he was a detainee at the Cayuga County Jail” (Andrews v County of
Cayuga, 96 AD3d 1477, 1477). In his amended complaint, plaintiff
asserts three causes of action: for negligence and medical
malpractice, for an alleged violation of his civil rights under 42 USC
§ 1983, and for an alleged violation of his Fourteenth Amendment
rights to due process for defendant’s failure to provide him with
adequate medical care (see Powlowski v Wullich, 102 AD2d 575, 583-
584), respectively. Plaintiff moved for partial summary judgment with
respect to liability on his negligence claim, and defendant cross-
moved for partial summary judgment dismissing that part of the first
cause of action seeking damages for injuries to plaintiff’s shoulders,
i.e., bilateral fractures and dislocations; for summary judgment
dismissing the third cause of action; and for dismissal of the second
cause of action pursuant to CPLR 3211 (a) (7) for failure to state a
cause of action. Supreme Court denied the motion and cross motion,
and we affirm.

     Contrary to plaintiff’s contention on his cross appeal, we
conclude that the court properly denied his motion inasmuch as
                                 -2-                           748
                                                         CA 15-01669

defendant raised an issue of fact whether jail personnel were
negligent in his treatment. Both parties submitted expert affidavits
with respect to plaintiff’s treatment, and it is axiomatic that “the
conflicting opinions of the experts . . . present credibility issues
that cannot be resolved on a motion for summary judgment” (Haas v F.F.
Thompson Hosp., Inc., 86 AD3d 913, 914 [internal quotation marks
omitted]). The conflicting expert opinions also preclude summary
judgment dismissing plaintiff’s third cause of action for an alleged
violation of his Fourteenth Amendment rights based upon the failure of
defendant to provide adequate medical care (see id.).

     The court also properly denied that part of defendant’s cross
motion seeking partial summary judgment with respect to the injuries
to plaintiff’s shoulders. “It is well settled that, on a motion for
summary judgment, a defendant in a medical malpractice action bears
the initial burden of establishing either that there was no deviation
or departure from the applicable standard of care or that any alleged
departure did not proximately cause the plaintiff’s injuries” (Bagley
v Rochester Gen. Hosp., 124 AD3d 1272, 1273). Here, defendant failed
to establish that its expert, a psychiatrist, was qualified to offer
an opinion that plaintiff’s shoulder injuries were not caused by
defendant’s negligence (cf. Black v State of New York [appeal No. 2],
125 AD3d 1523, 1525). The remaining evidence submitted by defendant
merely notes “gaps in its opponent’s proof,” which is not sufficient
to establish its entitlement to summary judgment (Andrews, 96 AD3d at
1478 [internal quotation marks omitted]).

     Accepting as true the facts as alleged in the amended complaint
and according plaintiff the benefit of every favorable inference (see
Leon v Martinez, 84 NY2d 83, 87-88; Board of Trustees of IBEW Local 43
Elec. Contrs. Health & Welfare, Annuity & Pension Funds v D’Arcangelo
& Co., LLP, 124 AD3d 1358, 1359), we conclude that plaintiff’s
allegation that he was denied his Fourteenth Amendment rights to
adequate medical care by jail personnel is sufficient basis for the
assertion of a cause of action pursuant to 42 USC § 1983 (see
Powlowski, 102 AD2d at 583-584; cf. Matter of Wooley v New York State
Dept. of Correctional Servs., 15 NY3d 275, 281-283, rearg denied 15
NY3d 841). “[I]t is well established that[,] in order to state a
claim under [section] 1983, a plaintiff must allege (1) that the
challenged conduct was attributable at least in part to a person
acting under color of state law, and (2) that such conduct deprived
the plaintiff of a right, privilege, or immunity secured by the
Constitution or laws of the United States” (Kennedy v St. Barnabas
Hosp., 283 AD2d 364, 366). Contrary to defendant’s contention,
plaintiff made the requisite allegations here.




Entered:   September 30, 2016                  Frances E. Cafarell
                                               Clerk of the Court
