Appeal from a judgment of the Supreme Court (Cahill, J.), entered August 18, 2010 in Ulster County, which granted defendants' motion to dismiss the complaint.
The opinion of the court was delivered by: Mercure, J.P.
Calendar Date: February 8, 2013
Before: Mercure, J.P., Spain, McCarthy and Garry, JJ.
Plaintiff, a prison inmate, commenced this action pursuant to 42 USC § 1983, asserting that defendants were deliberately indifferent to his serious medical needs when they allegedly failed to provide him with a C-Pap machine to treat his sleep apnea, in violation of his rights under the Eighth Amendment of the US Constitution. Defendants moved to dismiss the complaint for failure to state a cause of action. Supreme Court granted defendants' motion, prompting this appeal.
Viewing the complaint liberally and accepting the allegations therein as true, as we must on a motion to dismiss, we cannot conclude that plaintiff has stated a cause of action under 42 USC § 1983 (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 ; Kennedy v St. Barnabas Hosp., 283 AD2d 364, 365 ). "An inmate must meet two requirements to state a claim under section 1983 that a prison official violated his or her Eighth Amendment rights. First, the inmate must allege a deprivation that is, objectively, sufficiently serious . . .. Second, the inmate must also show that the defendants acted with deliberate indifference, which requires more than a showing of mere negligence" (Rodriguez v City of New York, 87 AD3d 867, 868-869  [internal quotation marks and citations omitted]; see Chance v Armstrong, 143 F3d 698, 702 ; Kennedy v St. Barnabas Hosp., 283 AD2d at 366).
Plaintiff's condition was assessed by medical experts outside the prison and, as recommended by his doctor, a C-Pap machine was ordered to treat his sleep apnea. While awaiting arrival of the C-Pap machine, plaintiff sought and received a sleep repositioning device. Plaintiff acknowledges that he received the C-Pap machine after a six-month wait, and he has not averred any harm resulting from the alleged delay in its provision. Assuming without deciding that the delay in providing the C-Pap machine to treat plaintiff's sleep apnea constitutes a serious deprivation such that the objective requirement is satisfied, plaintiff has failed to articulate facts that could satisfy the "deliberate indifference" standard under the circumstances (see Pappanikolaou v New York City, 2005 WL 1661649, *13, 2005 US Dist LEXIS 39201, *39-40 [ED NY, July 14, 2005, No. CV-01-865]; cf. Alvarado v Ramineni, 2010 WL 2949322, *3-*5, 2010 US Dist LEXIS 73828, *7-*12 [ND NY, Mar. 15, 2010, No. 9:08-CV-1126], adopted 2010 WL 2948235, 2010 US Dist LEXIS 73855 [July 22, 2010]). Accordingly, the complaint was properly dismissed.
Spain, McCarthy and Garry, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
Robert D. Mayberger Clerk of the Court
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