New York State Court of Claims

New York State Court of Claims

PEREZ v. STATE OF NEW YORK, #2006-037-006, Claim No. 111752, Motion No. M-71222


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:
Nixon Perez, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer
New York State Attorney General
By: Gregory P. Miller, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 22, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant brings a pre-answer motion to dismiss the claim pursuant to CPLR § 3211 (a) (7) for failure to state a cause of action. The following were read and considered on Defendant’s motion to dismiss:
1. Notice of motion filed January 20, 2006, and supporting affidavit of Assistant

Attorney General Gregory P. Miller sworn to January 18, 2006, with annexed Exhibit A.

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 [2002]; Leon v Martinez, 84 NY2d 83 [1994]). “[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,[1] citing Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

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 [1997]).

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.

March 22, 2006
Buffalo, New York

Judge of the Court of Claims

[1]. This and other unreported Court of Claims decisions may be found on the Court’s web site at