4. Undated, unsworn reply of Claimant, filed October 29, 2002. This is the
motion of Francisco Ramirez for permission to file a late claim pursuant to
§ 10(6) of the Court of Claims Act (the "CCA"). The proposed claim
alleges that, commencing on August 8, 2001, and while incarcerated at Wyoming
Correctional Facility, Claimant was denied proper dental treatment.
Specifically, Claimant states that on August 8, 2001, one of his fillings fell
out. He sought medical assistance and was given a temporary filling that same
afternoon. Within three hours, that temporary filling, too, fell out.
Claimant received a second temporary filling on August 21, 2001. He asserts
that, at that time, he was told that he would be placed on a list to receive a
permanent filling and that it would be a few weeks before this procedure would
take place. Claimant alleges that, since that time, and despite his complaints,
he has not received the permanent filling. He claims that he has been in pain
since shortly after August 21, 2001, and that he recently learned that the tooth
in question must be pulled. He asserts that the decay that necessitates that
the tooth now be pulled is the result of Defendant's failure to provide him with
a permanent filling in a timely manner.
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, Claimant asserts that he is
incarcerated and was unaware of the time limitations for commencing an action in
the Court of Claims. This, of course, is not a legally recognizable excuse for
Claimant's delay (see e.g. Matter of Galvin v State of New York, 176 AD2d
1185, appeal denied 79 NY2d 753; Bommarito v State of New York, 35
AD2d 458). This factor, therefore, tends to weigh in favor of Defendant.
Though not addressed by Claimant, from the papers before me it appears that
Claimant's only remedy for the matters asserted in the proposed claim is in an
action against the State in the Court of Claims. This factor, therefore weighs
in Claimant's favor.
Defendant does not oppose this application on the basis of the statutory
factors of notice, opportunity to investigate, or substantial prejudice. Those
factors are, therefore, presumed to weigh in the Claimant's favor (see
Calzada v State of New York, 121 AD2d 988; Cole v State of New York,
64 AD2d 1023, 1024).
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 Claimant has failed to
offer an affidavit of an expert demonstrating how Defendant's care of Claimant
deviated from community standards. Defendant also asserts that Claimant offers
nothing besides his lay opinion that establishes the merit to his contentions
that his wait for a permanent filling was inappropriately long, or causally
related to the need, if any, to extract the tooth in question at this
A cause of action sounding in dental neglect, 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 no such easily
identified cause of action exists here and that an expert opinion is necessary
to demonstrate how Claimant's care was improper. Put another way, I find that
an expert opinion is required to determine if Claimant's dental condition
required that he receive his permanent filling when he alleges he should have,
as well as whether or not the failure to provide him with a permanent filling
was causally related to the pain he allegedly endured and the alleged need to
remove the tooth at this point.
Claimant has not submitted any evidence that the 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 the appropriate level of patient care, and the exercise of professional
judgment, I cannot 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] ). Although Claimant's dental
records, provided by Defendant, do indicate that the tooth in question
(Claimant's #16 tooth) does evidence "gross decay," on this record, the Court
finds 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 a fatal flaw in Claimant's ability 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], Corbett, J., UID#2000-005-518). As a result, movant has failed to show
that his proposed claim appears meritorious.
Based upon the foregoing, Claimant's motion for permission to file a late claim
is denied, without prejudice.