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

136
CA 11-00868
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.


RAUL RIVERA, CLAIMANT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-RESPONDENT.
(CLAIM NO. 110682.)


THE LEGAL AID SOCIETY, NEW YORK CITY (MILTON ZELERMYER OF COUNSEL),
FOR CLAIMANT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Court of Claims (Renee Forgensi
Minarik, J.), entered July 28, 2010. The order granted the motion of
defendant for leave to amend its answer and for summary judgment and
dismissed the claim.

     It is hereby ORDERED that the order so appealed from   is
unanimously modified on the law by denying those parts of   defendant’s
motion seeking summary judgment dismissing the claims for   negligence
and medical malpractice and reinstating those claims, and   as modified
the order is affirmed without costs.

     Memorandum: Claimant, an inmate at Auburn Correctional Facility,
previously commenced a CPLR article 78 proceeding seeking to annul the
determination of the Department of Correctional Services (DOCS)
denying him medical treatment for hepatitis C based upon his refusal
to participate in the residential substance abuse treatment (RSAT)
program. Claimant also sought judgment directing DOCS to provide him
with such medical treatment. Supreme Court dismissed the petition,
concluding that, inter alia, the determination of DOCS requiring
claimant to participate in RSAT as a condition to receiving medical
treatment for hepatitis C was not arbitrary and capricious or an abuse
of discretion (Matter of Rivera v Goord, 10 Misc 3d 302).

     Claimant thereafter commenced the instant action seeking damages
for injuries allegedly resulting from defendant’s denial of medical
treatment for hepatitis C. The Court of Claims erred in granting
those parts of defendant’s motion seeking summary judgment dismissing
the claims for negligence and medical malpractice on the ground that
those claims are barred by the doctrine of res judicata or collateral
estoppel. “In the prior CPLR article 78 proceeding[, claimant] could
not have sought the relief [he] seek[s] in this action” (Margerum v
                                 -2-                          136
                                                        CA 11-00868

City of Buffalo, 63 AD3d 1574, 1580). Moreover, whether defendant was
negligent or deviated from accepted standards of care “was not
actually and necessarily decided” in that proceeding (Reynolds v
Krebs, 81 AD3d 1269, 1271). We therefore modify the order
accordingly.




Entered:   January 31, 2012                    Frances E. Cafarell
                                               Clerk of the Court
