New York State Court of Claims

New York State Court of Claims

RAMIREZ v. THE STATE OF NEW YORK, #2002-031-068, , Motion No. M-65685


Claimant's failure to include an expert's affidavit precludes relief on his motion for permission to file a late claim. Motion denied without prejudice.

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: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 13, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 4, were read on motion by Claimant for permission to file a late claim:
1. Claimant's Notice of Motion, filed August 23, 2002;
2. Claimant's affidavit, sworn to August 16, 2002, with attached exhibits;
3. Affirmation of Reynolds E. Hahn, Esq., affirmed September 17, 2002 with attached exhibit;
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 time.

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.

December 13, 2002
Rochester, New York

Judge of the Court of Claims