New York State Court of Claims

New York State Court of Claims

SMALLEY v. STATE OF NEW YORK, #2001-018-066, Claim No. 100876, Motion Nos. M-62466, M-62467


Synopsis



Case Information

UID:
2001-018-066
Claimant(s):
FREDERICK J. SMALLEY
Claimant short name:
SMALLEY
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100876
Motion number(s):
M-62466, M-62467
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
FREDERICK SMALLEY
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIRE Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 1, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings a motion for summary judgment. Claimant brings a separate motion


seeking permission to amend the claim to seek $40,000 in damages. The Court has considered


the following documents in determining the motions:



Motion No. M-62466, Defendant's Motion for Summary Judgment


Notice of Motion..........................................................................1


Affirmation in Support of Joel L. Marmelstein, Assistant

Attorney General with All Exhibits Attached thereto......2


Affidavit in Support of Jerry Miller, D.D.S.................................3


Letter Response of Frederick J. Smalley in Opposition...............4



Motion No. M-62467, Claimant's Motion to Amend Claim

Notice of Motion..........................................................................5


Affidavit of Frederick J. Smalley in Support with all exhibits

attached thereto.................................................................6


Motion No. 62466, Defendant's Motion for Summary Judgment

Defendant brings this motion seeking summary judgment on the ground that there are no questions of fact which need to be determined and the claim is without merit.

The claim asserts a cause of action for the negligence of the State in failing to provide proper dental care for Claimant's fractured tooth. Claimant asserts that he reported the problems he was having with his tooth several times and the State dentists still have not fixed the tooth properly.

Defendant, in support of its motion, submits the affidavit of Doctor Jerry Miller, a duly licensed and practicing dentist in the State of New York. He is employed by the Department of Correctional Services for the State and works at the Riverview Correctional Facility. Doctor Miller presents the course of treatment that was performed on Claimant's fractured tooth. Ultimately, extraction of the tooth was recommended to eliminate continuing discomfort which Claimant rejected, demanding instead that a root canal and cap be provided. Defendant has set forth a prima facie case establishing that the dental services Claimant received were not negligently provided, rather Claimant desires a course of treatment that is not authorized under the Department of Correctional Services policies. Merely providing treatment that is different from what Claimant desires does not provide a basis for liability. (Cf., Jacques v State of New York, 127 Misc 2d 769; St. George v State of New York, 283 App Div 245, aff'd 308 NY 681)

Claimant's letter in opposition did not sufficiently rebut Defendant's proof. In fact, Claimant seems to be moving away from the failure to properly treat the fractured tooth, to arguing that there was negligence in the preparation or processing of the meatball which allegedly fractured his tooth. This very well may be the case; however, the claim does not request relief for such negligence, and this Court would not be the proper forum for a suit against an independent manufacturer of the meatballs.

Summary judgment is a drastic remedy which should only be granted where there are no issues of fact to be decided. (Moskowitz v Garlock, 23 AD2d 943) In this case Defendant has set forth a prima facie case and Claimant has failed to come forward with sufficient proof to rebut Defendant's submissions. (Simms v North Shore University Hosp., 192 AD2d 700)

Defendant's motion is GRANTED and the claim is DISMISSED.

Motion No. M-62467, Claimant's Motion to Amend Claim

Based upon the decision above dismissing the claim, Claimant's motion seeking to amend the claim is DENIED as moot.


March 1, 2001
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims