New York State Court of Claims

New York State Court of Claims

GRIFFEN v. THE STATE OF NEW YORK, #2005-016-026, Claim No. 96569


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):

Alan C. Marin
Claimant's attorney:
Gary Griffen, Pro se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Earl F. Gialanella, Esq., AAG
Third-party defendant's attorney:

Signature date:
June 22, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This decision follows the trial of the claim of Gary Griffen, which was held at Sullivan Correctional Facility. Mr. Griffen testified on his own behalf; there were no other witnesses. The underlying claim alleges negligence and malpractice in connection with medical treatment claimant received at Woodbourne Correctional Facility.

Griffen testified that on March 25, 1996,[1]
he reported to the Woodbourne medical facility for a "regular physical examination" by Dr. Frank Lancellotti. During the course of the exam, the doctor told him that there was wax in his ears, which would be removed at a follow-up appointment. Meanwhile, he was given drops to use in his ears. When he returned several days later, Dr. Lancellotti:
took this big instrument – a long . . . metal instrument and he stuck it . . . in my ear . . . He began in my right ear with it . . . he was drawing it and pushing . . . punching in my ear . . . and it was causing no pain . . . At the same time . . . some kind of substance . . . inside . . . was . . . foaming up my ear . . . it started to . . . annoy my ear and . . . I couldn't hear. He . . . kept pumping this real hard, pressing it . . . and I was . . . telling him . . . could he stop? . . . I couldn't take the pain. And . . . he pulled it out. Then he refilled it and he stuck it in my ear, again. And he went through this procedure to perform this . . . several times . . . [I screamed] and told him, "no, it's too much pain."

Claimant recalled that Dr. Lancellotti then stopped, looked in his ear with a "scope" and said he could not continue because the ear was red and infected and claimant would need medication. According to Griffen, he then told the doctor that he could not hear and the doctor replied, "[i]t's normal that you won't hear for a few days . . . Your hearing will come back."
Griffen said he then left the doctor's office, but told a nurse, "I'm not going [anywhere]. I want to go . . . to see a doctor. I want to go . . . to an outside . . . hospital, because I can't hear. I'm not going back to the block. . . . I'm not leaving the clinic." Dr. Lancellotti came out and reiterated that claimant's hearing would come back in a few days.

Griffen testified that he took an antibiotic for three days and during such time, his hearing was "gone." He said that currently, he hears "out of one of my ears." He said that for six months, he returned to the medical facility repeatedly to complain and to request that he have his hearing tested by an outside doctor. He was at some point seen by an otolaryngologist in Kingston. According to claimant, that doctor "indicated that I had a hearing loss, but he wanted me to be retested in six months." He added that now he has a hearing aid for his right ear. Finally, claimant testified that he saw a hearing specialist at Coxsackie Correctional Facility in December of 1997.
* * *
"It is well settled that the State owes a duty to its incarcerated citizens to provide them with adequate medical care."
Kagan v State of New York, 221 AD2d 7, 8, 646 NYS2d 336, 337 (2d Dept 1996). However, in order to prevail in a case such as this, claimant must present expert testimony that there was a variation from accepted standards of medical care. This was not done here. See, e.g., Lyons v McCauley, 252 AD2d 516, 675 NYS2d 375 (2d Dept 1998), lv denied 92 NY2d 814, 681 NYS2d 475 (1998). For the foregoing reasons, claim no. 96569 is dismissed.

June 22, 2005
New York, New York

Judge of the Court of Claims

  1. [1]The transcript has the date as March 25, 1986, however, it is clear that the correct date is March 25, 1996.