New York State Court of Claims

New York State Court of Claims

GREENE v. THE STATE OF NEW YORK, #2003-032-527, Claim No. 103823


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:
Jonathan Greene, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael C. Rizzo, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
December 30, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant Jonathan Greene filed this claim in February 2001 alleging that on July 20, 2000 he slipped and fell on some rocks while walking to the yard at Clinton Correctional Facility, injuring his right hand in the process. The injury, it was later determined, consisted of a fracture to the fifth metacarpal bone of his right hand. Claimant also alleged that this injury was not promptly or properly treated by the Department of Correctional Services (DOCS) and that he did not receive the proper painkillers for a period of time.

At trial, claimant's only evidence regarding his injury was his testimony. He explained he was walking out to the facility yard in the rain and slipped and fell on some rocks that were evidently the byproduct of a roof construction project taking place on the premises. Other evidence proffered by the State (
see Defendant's Exh. A) suggested that on the day in question, claimant told medical personnel while being initially treated that he had injured his hand punching a punching bag. Claimant had no explanation why these differing accounts would be contained in his medical records at trial, but he remained steadfast that he had injured his hand by falling.
The State is not the insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (
see Killeen v State of New York, 66 NY2d 850, 851; Condon v State of New York, 193 AD2d 874). Accordingly, in order to prevail on the portion of his claim alleging that the State's negligence caused his injury, it was incumbent upon claimant to show the existence of a foreseeable dangerous condition; that the State either created the condition or had either actual or constructive notice of the condition; and that the State failed to remedy the condition within a reasonable time (see Gordon v American Museum of Natural History, 67 NY2d 836; Ligon v Waldbaum, Inc., 234 AD2d 347; Mercer v City of New York, 223 AD2d 688, affd 88 NY2d 955). Even if the Court accepted claimant's version of events as to how the injury happened, there was no testimony or other evidence to establish how long the debris he allegedly tripped over had been present on the walkway. In other words, claimant presented no evidence to indicate whether the contractor doing roofing work had recently deposited the material in the yard or whether the debris had been there for a sufficient length of time so as to put the State on notice of a potentially hazardous condition. Absent any evidence tending to answer this critical question, there is no basis for this Court to impose liability for claimant's alleged accident.
The next portion of the claim centers upon claimant's somewhat nebulous allegation that he was not properly treated for his injury, however it may have occurred. The gravamen of his testimony at trial on this point appeared to be that he should have been X-rayed and given a cast at an earlier time after his injury. The State countered this contention at trial by offering evidence (
see Defendant's Exh. B) showing that claimant had received prompt attention for his hand and by making a motion to dismiss claimant's claim for failure to present a prima facie case. The basis of the motion was that claimant had presented no competent evidence to establish that there had been a departure from the appropriate standard of medical care.
It is settled law that the State owes a duty to provide its inmate population with adequate medical care without undue delay and that when it can be established that a delay in diagnosis or treatment caused or aggravated an injury, the State may be held liable (see Kagan v State of New York, 221 AD2d 7). The Court notes, however, that the resolution of a central issue in this case (i.e., whether the treatment of claimant's injury deviated from acceptable medical practice) "involve[s]. . .matter[s] of medical science. . .requiring special skills not ordinarily possessed by lay persons [or this Court] . . ." (Matter of Barresi v State of New York, 232 AD2d 962, 963 [citation omitted]; see Wells v State of New York, 228 AD2d 581, lv denied 88 NY2d 814). Consequently, whether claimant's action is cast as one sounding in medical malpractice or in simple negligence, expert testimony was essential in order for claimant to establish that defendant's care deviated from accepted medical standards (see Duffen v State of New York, 245 AD2d 653, lv denied 91 NY2d 810; Marchione v State of New York, 194 AD2d 851, 855; Harris v State of New York, Ct Cl, unreported decision filed Jan. 3, 2001, Collins, J., Claim No. 97709; Hakim v State of New York, Ct Cl, unreported decision filed Nov. 20, 2000, Marin, J., Claim No. 99642). Absent this expert testimony, the Court cannot determine whether given the entirety of the circumstances presented claimant's treatment was indeed deficient or, alternatively, whether the treatment he received, as evidenced by defendant's Exhibit B, was a reasonable incremental response by DOCS' medical personnel to his complaints of pain in his hand. Accordingly, the Court must find that claimant has failed to present a prima facie case and now grants that portion of the State's motion to dismiss this portion of the claim.
The portion of the claim premised upon the alleged failure to provide the prescribed painkillers, in this Court's view, presents a clearer issue and requires no expert testimony to establish a breach of the duty of care (
see e.g. France v State of New York, 132 Misc 2d 1031 [facility pharmacist's failure to provide prescribed anti-itch cream]; Gill v State of New York, Ct Cl, unreported decision filed Aug. 29, 2000, O'Rourke, J., Claim No. 96248 [facility's failure to provide medically prescribed boots]). Based on claimant's testimony, as buttressed by his grievance (Exhibit 6) and DOCS' response to this grievance (annexed to claim), the Court finds, as did the Grievance Committee, that claimant did not receive his prescribed painkiller (Ultram) for a period of approximately two weeks from July 27, 2000 until August 9, 2000.
Although there was no evidence offered to suggest this lack of medicine caused claimant's condition to worsen, the Court is satisfied that claimant's suffering would have been lessened to a substantial degree had the proper pain medication been made available. "[B]earing in mind that personal injury awards, especially those for pain and suffering, are subjective opinions which are formulated without the availability, or guidance, of precise mathematical quantification" (
Reed v City of New York, 304 AD2d 1, 7), the Court awards claimant $100.00 for the two weeks he went without the prescribed painkiller (see e.g. Vasquez v State of New York, Ct Cl unreported decision filed June 13, 2001, Read, P.J., Claim No. 99686 [approximately $140 per month for failure to provide properly sized knee brace]; Hakim v State of New York, supra [approximately $170 per month awarded for pain and suffering for State's negligent failure to temporarily relieve inmate from work duty due to injured finger]; Gill v State of New York, supra [$100 per month for failing to provide inmate with prescribed boots with orthotic insoles]).
The Chief Clerk is directed to enter judgment accordingly. To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a (2).

December 30, 2003
Albany, New York

Judge of the Court of Claims