New York State Court of Claims

New York State Court of Claims

FISCHL v. THE STATE OF NEW YORK, #2002-031-016, , Motion No. M-64413


Claimant's failure to include expert affidavit is fatal to his motion for permission to file a late claim.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 30, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on motion by Claimant for permission to file a late claim:
  1. Claimant's Notice of Motion, filed December 6, 2001;
  2. Claimant's affidavit, sworn to November 21, 2001, with attached exhibits;
  3. Affidavit of William D. Lonergan, Esq., sworn to February 4, 2002;
  4. Affidavit of William S. Mayes, Jr. DDS., sworn to February 4, 2002, with attached exhibits;
  5. Defendant's Memorandum of Law, dated February 4, 2002.
This is the motion of Josef Kirk Fischl for permission to file a late claim pursuant to §10(6) of the Court of Claims Act (the"CCA").[1] The proposed claim alleges that between February 11, 2000 and November 21, 2001, Mr. Fischl was denied proper dental treatment. According to Claimant, he learned that he needed treatment for five cavities and periodontal disease when Dr. Mayes, an agent of Defendant, examined him on February 11, 2000. Claimant alleges he was not treated on February 11, 2000, and he was denied proper dental treatment from that date through and including November 21, 2001. He claims he "was never provided medication for treatment of periodontal disease after diagnosis, and only one (1) cavity (was) filled after being initially diagnosed with five (5) cavities..." (proposed claim at paragraph 6). Claimant alleges that, as a result of the Defendant's failure to properly treat him, he has suffered "pain, gum inflammation, bleeding gums, numbness, difficulty in chewing food, and sensitivity to cold beverages" (proposed claim at paragraph 8).

Subdivision 6 of §10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination. (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

With regard to his excuse for the delay in filing a claim, Claimant's position is unclear. He seems to suggest that Defendant's delay in treating him, which forms the basis of his claim, somehow also prevented him from filing his claim. Defendant asserts that Claimant has failed to offer a reasonable excuse for his delay in filing the claim and points out that Claimant filed a grievance concerning the matters alleged in the proposed claim on October 5, 2000, more than one year before filing the present motion.

Claimant alleges that he has no other remedy to address the matters asserted in the claim. Defendant argues that Claimant could commence an Article 78 proceeding.

Claimant alleges and Defendant admits that it had notice of and a chance to investigate the matters asserted in the claim. Claimant maintains that, because Defendant had both notice and a chance to investigate, it would not be prejudiced if the motion were granted. Defendant asserts, however, that it would be significantly prejudiced if the motion were granted as Defendant "would be required to expend valuable resources to defend a claim which clearly has no merit." (Defendant's memorandum of law, p. 4).

Of the six enumerated factors in CCA §10(6), it is the appearance of merit that is most significant. It would be pointless to grant permission to file late if the proposed claim did not have at least the appearance of merit (See, e.g., Prusack v State of New York, 117 AD2d 729). On this point, Defendant opposes the application, pointing out that, although the proposed claim states that it is for "dental negligence," it sounds in malpractice and Claimant has failed to offer an affidavit of an expert demonstrating how Defendant's care of Claimant deviated from community standards. Defendant also submits the affidavit of William S. Mayes, Jr., DDS, the dentist who treated Claimant during the time in question and who also supervises all dental services at Wende.

Dr. Mayes, through his affidavit and the exhibits attached, demonstrates that Claimant was seen by dental staff on eight different occasions during this eighteen month period. On several other occasions, Claimant refused to attend appointments that had been scheduled for him. Dr. Mayes indicates that during the period in question Claimant had: one cavity filled; two sets of x-rays taken; his teeth cleaned twice and polished once; one tooth extracted; and refused treatment for a chipped tooth. Notably, Claimant was also placed on what Defendant describes as the "Class 2" list for having his remaining cavities filled.

Dr. Mayes explains that the Class 2 list is for general, non-emergency fillings. Inmates on this list are treated in the order that they are placed on the list. Defendant concedes that an inmate may have to wait a period of time while those ahead of him on the list have their dental work completed. Apparently, the root of this matter is that Claimant wanted to be placed on the "Class 3" list; a list for dental emergencies which require immediate treatment. Dr. Mayes indicates that it was his opinion that Claimant was properly placed on the Class 2 list. According to Dr. Mayes, Claimant had no acute dental problems that required immediate intervention.

A cause of action sounding in dental negligence, in essence, alleges negligent omissions or commissions by State caregivers which can be readily determined without the necessity of expert testimony. However, this theory is limited to "those cases where the alleged negligent act may be readily determined by the trier of the facts based on common knowledge" (Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256). Such cases have involved scalding a patient with a hot water bottle (Phillips v Buffalo General Hospital, 239 NY 188), leaving an electric light bulb under the sheets (Dillon v Rockaway Beach Hospital, 284 NY 176), leaving a postoperative patient unattended in a bathroom (Coursen v New York Hospital-Cornell Med. Center, supra), and other similar circumstances. I find that this is not a case where the alleged negligent act can be easily determined without expert assistance. I find that an expert opinion is required to determine if Claimant's dental condition necessitated his being placed on the Class 3 list, or that the length of time Claimant waited for certain dental work while on the Class 2 list was unreasonable.

Claimant has not submitted evidence that Department of Correctional Services personnel deviated from the appropriate standard of care or otherwise failed to utilize their professional judgment. Because his proposed claim involves a determination of the appropriate level of patient care and the exercise of professional judgment, I can not accept Claimant's own statement that the level of care afforded him was inadequate as the basis for a cause of action sounding in dental malpractice (see, Twitchell v MacKay, 78 AD2d 125; Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804; see, also, Morgan v State of New York, 40 AD2d 891 [expert medical testimony required to establish malpractice involving patient care] ). On this record, I find no basis to excuse the lack of an expert's affidavit (see, De Paolo v State of New York, 99 AD2d 762 [moving papers included medical records and product literature which indicated medication contraindicated] ), and the failure to provide one is fatal to Claimant's attempt to establish his claim as meritorious. (See, Jolley v State of New York, 106 Misc 2d 550, 551-552; Dunwoody v State of New York, Ct Cl, June 26, 2000 [Claim No. 99581, MacLaw No. 2000-005-518], Corbett, J)[2].

Upon reviewing and balancing all of the factors enumerated in CCA §10(6), the Court finds that they weigh in favor of Defendant. Claimant's motion for permission to file a late claim is denied.

April 30, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]On December 10, 2001, Claimant also filed claim number 105327-A which is identical to the proposed claim. Defendant filed an answer with affirmative defenses on January 31, 2002. This decision addresses neither that claim nor its validity, as the only matter before the Court at this time is Claimant's motion for permission to file a late claim.
  2. [2]This and other Court of Claims decisions may be found on the Court of Claims website at