New York State Court of Claims

New York State Court of Claims

KINCHEN v. THE STATE OF NEW YORK, #2006-032-509, Claim No. 106739


Synopsis



Case Information

UID:
2006-032-509
Claimant(s):
JEROME KINCHEN
Claimant short name:
KINCHEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106739
Motion number(s):

Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Jerome Kinchen, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
August 8, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
After a trial on May 31, 2006, the Court makes the following determination. Claimant brings this claim alleging that on November 9, 2001, he was working in the mess hall of Upstate Correctional Facility when he slipped on a wet floor and fell, sustaining injury. Claimant was seen by prison medical staff, who took X-rays. They revealed a fracture of the fifth metacarpal and claimant received Advil and a brace. Six days later, claimant saw the orthopedist at Franklin Correctional Facility, who advised that the brace should continue to be used. Claimant continued to complain of pain and continued to receive Advil. On December 20, 2001, claimant again saw the orthopedist, who recommended the removal of the brace and a range of exercises. In January 2002, claimant filed a notice of intention to bring this claim. He also filed a grievance on February 11, 2002, because he continued to experience pain. In response to his grievance, the nurse administrator advised claimant that he needed to address his pain concerns with the sick- call nurse. Thereafter, claimant visited sick call multiple times complaining of pain in his hand, and each time claimant received pain medication. Thereafter, he filed this claim in October 2002, alleging negligence and medical malpractice.
It is well settled that despite the State's obligation "to take every reasonable precaution to protect those who are in its institutions" (Bowers v State of New York, 241 AD2d 760, 760 [3d Dept 1997]), claimant must allege that defendant either created a dangerous condition or had notice of the condition (Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]). Here, there is no indication that defendant created or knew of the water on the floor. As such, this cause of action is dismissed.
Next, whether the claim is grounded in medical negligence or medical malpractice,
" '[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case' " Tatta v State of New York, 19AD3d 817 (3d Dept. 2005). In the instant case, the failure to present any medical testimony on claimant's treatment is fatal to his claim. Such facts are outside the ordinary experience and knowledge of a layperson (id).
Accordingly, the claim must be dismissed. All motions not previously decided are deemed denied.
Let judgment be entered accordingly.




August 8, 2006
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims