New York State Court of Claims

New York State Court of Claims

HEROUARD v. THE STATE OF NEW YORK, #2005-010-007, Claim No. 104423


Synopsis


Claimant is awarded $2500.00 in damages from the failure of defendant to reissue prescription eyeglasses in a timely manner while he was incarcerated at Fishkill Correctional Facility.

Case Information

UID:
2005-010-007
Claimant(s):
MARC HEROUARD
Claimant short name:
HEROUARD
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104423
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
MARC HEROUARDPro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Dewey Lee, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 9, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant seeks damages resulting from the failure of defendant to reissue prescription eyeglasses in a timely manner while he was incarcerated at Fishkill Correctional Facility (Fishkill). On February 7, 2001, after his release from the Special Housing Unit (SHU), claimant received his stored property and discovered that his eyeglasses had been broken. It is undisputed that defendant eventually agreed to replace the eyeglasses at no cost to claimant. Claimant, however, did not receive new glasses until December 4, 2001. Claimant maintains that, in the interim, he had blurry vision and headaches due to his work assignment in the law library. He made multiple requests for a change of program, which were denied. Claimant also contends that the delay in replacing his glasses caused his vision to deteriorate. Claimant did not offer any expert medical opinion to support that contention.
Pursuant to c
laimant's subpoenas, Correction Lieutenant Joseph Pataro; Dr. Richard Klyszejko, Facilities Health Services Director at Fishkill; and Dr. Richard Wurzel, an outside contractor providing ophthalmologic services to inmates, testified at trial. Dr. Klyszejko conceded that it was possible for visual eyestrain to cause headaches, but the lack of glasses would not cause blurred vision. Klyszejko testified that eyeglasses are usually issued one month after an inmate has a doctor's appointment. Klyszejko considered three months to receive prescribed glasses as excessive.
On October 29, 2001,
claimant filed a grievance requesting a change in program assignment. In regard to the grievance, Dr. Supple examined claimant and determined:
"It is my medical opinion that if he does have headaches it is not caused by ‘visual strain'. Furthermore, new glasses were ordered 8/01 but he has not received them yet. He was advised to try his program with his new glasses. He refused this advice. I believe his headaches are not from visual problems, but rather are due to the fact he wants to change his program and has been denied. This denial was in his prior grievance to Superintendent Mazzuca for the same issue. The bottom line is there is no medical evidence that sitting in a law library will cause headaches from eye strain."

(Ex. 10). Klyszejko relied on the assessment of the examining physician. Claimant's request for a change of program was denied.
Dr. Richard Wurzel testified that he has been an optometrist for 25 years and is an outside contractor for the New York State Department of Correctional Services. He reviewed
claimant's vision records and noted that from 2000 to 2002, his vision became increasingly farsighted (Ex. 13). Wurzel testified that this was due to the natural process of aging, rather than the absence of glasses. Wurzel testified that the failure to wear glasses might be uncomfortable, but does not cause deterioration. Claimant offered no competent evidence to refute this medical opinion.
Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that
claimant experienced discomfort due to defendant's failure to issue claimant new glasses in a more timely manner. Claimant, however, did not meet his burden of proving that the lack of glasses caused his eyes to deteriorate (see Wong v Tang, 2 AD3d 840). The Court also finds a lack of evidence to establish the other allegations of the claim. Accordingly, on the evidence presented, claimant has established entitlement to an award of $2,500.00.
It is further ordered that, to the extent that
claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).
LET JUDGMENT BE ENTERED ACCORDINGLY.

February 9, 2005
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims