1. Notice of motion filed January 20, 2006, and supporting affidavit of
Attorney General Gregory P. Miller sworn to January 18, 2006, with annexed
Filed papers: Claim.
With respect to a pre-answer motion to dismiss for failure to state a cause of
action, the Court must afford the pleading a liberal construction, accept as
true Claimant’s allegations, and afford Claimant the benefit of every
favorable inference (Goshen v Mutual Life Ins. Co. of N.Y
., 98 NY2d 314
; Leon v Martinez
, 84 NY2d 83 ). “[T]he sole criterion
is whether the pleading states a cause of action, and if from its four corners
factual allegations are discerned which taken together manifest any cause of
action cognizable at law a motion for dismissal will fail” (Smith v
State of New York
, Ct Cl, June 6, 2001, Sise, J., Claim No.103396, Motion
No. M-63231, UID # 2001-028-0535,
Guggenheimer v Ginzburg
, 43 NY2d 268, 275 ).
The gravamen of the claim relates to the allegedly negligent denial of or delay
in providing Claimant with dental care while he was incarcerated at Collins
Correctional Facility. Claimant further alleges that he suffered pain, incurred
an infection, had difficulty chewing, and lost weight as a result of being
denied prompt and proper dental care. Indeed, even Assistant Attorney General
Gregory P. Miller admits at paragraph 6 of his supporting affidavit that
Claimant “alleges in his verified claim that ... he was the recipient of
inadequate dental care.” Thus, while the pleading may not be artfully
stated, the allegations of the claim are sufficient to allege a valid cause of
action for medical negligence and/or malpractice (see Szczerbiak v Pilat,
90 NY2d 553, 556 ).
Moreover, insofar as Claimant’s claim can be construed as alleging a
cause of action for negligent infliction of emotional distress, at least one
Court has held that allegations of denial of or delay in providing medical care
are enough to sustain such a cause of action (see Lopez v State of New
York, Ct Cl, October 29, 2003, Minarik, J., Claim No. 104247, Motion Nos.
M-66071, CM-66449, UID # 2003-031-078).
Whether the Claimant will ultimately be able to prove the allegations in his
claim must await trial or a motion for summary judgment where it is more
appropriate to adjudicate the actual merits of a particular claim. At this
juncture, it is simply enough to have alleged viable causes of action.
Accordingly, it is hereby
ORDERED, that Defendant’s motion to dismiss (M-71222) is denied.
Defendant is directed to file and serve its answer to the claim within 40 days
after filing of this Decision and Order.