New York State Court of Claims

New York State Court of Claims

VELEZ v. THE STATE OF NEW YORK, #2006-028-566, Claim No. 107097, Motion No. M-71498


SUMMARY: State’s motion to dismiss is denied. The claim is timely, and the fact that the pro se claimant will have to have a medical expert to prevail on his claim does not provide a basis for dismissing the action prior to trial.

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:
BY: Kevan J. Acton, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 21, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant’s motion for an Order of Dismissal:

1. Notice of Motion and Supporting Affirmation of Kevan J. Acton, AAG

2. Affidavit in Opposition of Jessie Velez, pro se

Filed papers: Claim; Answer

By this Claim, which was filed and served in December 2002, Claimant seeks to recover money damages for pain, suffering and physical limitation allegedly caused by medical negligence and/or medical malpractice on the part of Department of Correctional Services (DOCS) physicians. Claimant alleges that he dislocated and tore ligaments in his shoulder on May 5, 2000, before entering the State prison system. After the injury, he was informed by a physician on Rikers Island (which is owned and operated by New York City, not by Defendant) that in order to properly repair the shoulder, he would possibly need to have an operation that would involve putting pins in the joint.

Claimant was subsequently transferred to Clinton Correctional Facility, still suffering from the shoulder injury (Claim, ¶ 6). He states that he was sent on “numerous” medical trips to other facilities and that, at some point, he was told by a physician that surgery would be too risky (“surgery would result in a ‘life or death’ situation”) (id.). Claimant received six weeks of physical therapy that, he states, had “no result.” As of the time the claim was filed, Claimant asserted that his injury continued to cause pain and had not been effectively treated (id., ¶ 9).

In its Answer, Defendant State of New York, raised, among others, the affirmative defense of untimeliness, and one prong of this motion seeks dismissal of the Claim on that ground. The State’s argument regarding timeliness rests on the conclusion, or assertion, that the claim accrued on May 5, 2000, the date Claimant’s shoulder was injured (Acton affirmation, ¶ 1). This is incorrect. The Claim states, quite clearly, that the State is being sued for alleged failure to properly treat Claimant’s injury, not for having any role in causing the injury. Defendant’s responsibility for treating the injury would have commenced when Claimant entered the State prison system,[1] and its duty would be continuing if, as Claimant alleges, the condition remains untreated. Unreasonable delay in properly diagnosing and treating a medical condition may constitute medical malpractice when the omissions "amount to something more than an honest error in professional judgment" (Stanback v State of New York, 163 AD2d 298 [2d Dept 1990]).

Defendant also argues that the Claim should be dismissed because “absent expert opinion [Claimant] will not be able to establish a prima facie case of medical malpractice” and “it appears Claimant will not be able to overcome the reasonable medical judgment rule with respect to the opinion offered by the surgeon” (Acton affirmation, ¶ 7). Depending on the proof offered at trial and the witnesses called by Claimant, these statements may well turn out to be accurate. However, more potential that Claimant may not be able to prove his case does not provide a legal basis for dismissal of the action at the present time. And, as defense counsel notes, pro se litigants are exempt from the statutory requirement that they submit a certificate of merit along with any claim asserting medical, dental or podiatric malpractice (CPLR 3012-a [f]), so it is not necessary for Claimant to have consulted with a physician at this juncture

Consequently, while it may come to pass that Claimant will have to supply expert medical testimony to prevail at trial in this action (Duffen v State of New York, 245 AD2d 653 [3d Dept 1997], lv denied 91 NY2d 810 [1998]), the Claim is not frivolous or insufficient on its face, and there is no ground for dismissing it at this time.

Defendant’s motion is DENIED.

July 21, 2006
Albany, New York

Judge of the Court of Claims

[1]. This date is not listed in the Claim but would be readily and easily available to Defendant.