New York State Court of Claims

New York State Court of Claims

DELVAS v. THE STATE OF NEW YORK, #2006-016-067, Claim No. 110027


Synopsis



Case Information

UID:
2006-016-067
Claimant(s):
JOSE DELVAS
Claimant short name:
DELVAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110027
Motion number(s):

Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Jose Delvas, Pro se
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy Dewey Lee, Esq., AAG
Third-party defendant’s attorney:

Signature date:
October 23, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This decision follows the trial of the claim of Jose Delvas, in which he alleges that he was improperly treated for a skin condition while incarcerated at Otisville Correctional Facility.
Claimant testified that while playing ball in the Otisville recreation area, he “caught . . . Poison Oak,” so he went to Sick Call and was given “A & D Ointment” for his hands.
[1]
Mr. Delvas said that his condition worsened, after which he was given a different ointment, and then Calamine Lotion, which alleviated his pain “a little.” Delvas testified that after filing a grievance, he was taken to see a specialist at Fishkill Correctional Facility who said, “Yes, you have Poison Ivy.” He was given medication which helped, but six days later, the skin condition returned. Laboratory tests were then done, the results for which were “unknown disease.”
Delvas testified that he was next taken to Westchester Medical Center and Mount Vernon Hospital. At the latter facility, he was given a cream that keeps his condition “at bay,” although it “comes and goes.” Claimant noted that the condition had spread to various parts of his body and that he was “scarred for life.”
Delvas maintained that if “they [had taken] care of this problem when I first got it . . . instead of waiting . . . for months . . . before they even thought about giving me a specialist, I believe I would never [have gone] through this process.” He also contended that there should have been warning signs or fences to prevent him from coming into contact with the plants which caused his condition.
“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 would be required to present expert testimony that there was a deviation from accepted standards of medical care which proximately caused him injury, which claimant failed to do. See, e.g., Lyons v McCauley, 252 AD2d 516, 675 NYS2d 375 (2d Dept 1998), lv denied 92 NY2d 814, 681 NYS2d 475 (1998). As to a lack of warning signs or fences, Delvas’ claim contained no allegations as to same. In any event, his limited testimony was insufficient to demonstrate any negligence on the part of defendant. For the foregoing reasons, claim no. 110027 is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.

October 23, 2006
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]Claimant’s testimony contained no references to dates or times; his claim states that he first went to Sick Call on October 21, 2001.