Moore v. Leonardo

Casey, J. Appeal from a judgment of the Supreme Court (Berke, J.), entered September 23, [490] 1991 in Washington County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to compel respondents to provide petitioner with adequate medical treatment. Petitioner, an inmate at Great Meadow Correctional Facility in Washington County, instituted this CPLR article 78 proceeding to compel medical care and treatment above and beyond that which he is presently receiving, which he deems inadequate. In the alternative, petitioner seeks his release from imprisonment. It appears that petitioner was seen by the facility’s medical staff approximately 23 times between September 4, 1990 and August 5, 1991. During this period he was given blood, urine and stool analysis tests and X rays, all of which showed no abnormalities. He was diagnosed as having a spastic colon with symptoms of abdominal pain, cramps, nausea and diarrhea, and various medicines were prescribed from time to time. Based on the diagnosis and treatment, petitioner has failed to show that respondents were deliberately indifferent to a serious medical need (see, Estelle v Gamble, 429 US 97; Matter of Stephens v Ward, 63 AD2d 798), which is the burden that petitioner must meet in order to succeed on his claim (see, Matter of Ronson v Commissioner of Correction, State of N. Y., 112 AD2d 488, 489). His failure to meet that burden required dismissal of the petition and, therefore, we affirm Supreme Court’s judgment. Weiss, P. J., Levine, Mahoney and Harvey, JJ., concur. Ordered that the judgment is affirmed, without costs.