New York State Court of Claims

New York State Court of Claims

McCRORY v. THE STATE OF NEW YORK, #2006-044-006, Claim No. 109089


After trial, inmate’s claim for medical negligence relating to failure to take x-rays for bloody nose until the following day dismissed for both improper service and failure to establish a prima facie case.

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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 14, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, an inmate appearing pro se, alleges that defendant State of New York (“defendant”) negligently failed to provide him with appropriate medical care while he was incarcerated at Elmira Correctional Facility (“Elmira”). A trial of this claim was held at Elmira on October 25, 2006.
Claimant testified that he was being held in the Special Housing Unit on E-Block at Elmira on October 14, 2003 due to a rules infraction. On that day, E-Block was evacuated because a search of the facility was being performed by drug-sniffing dogs. During the evacuation, claimant was sent into the yard with the general population. While standing in the yard, claimant was assaulted by an unknown inmate, who hit him in the face, causing a bloody nose.

Claimant testified, with little credibility, that he advised Sergeant Keough, an Elmira correction officer, that he believed he had fractured his nose and needed medical treatment. He stated that Keough threatened him and told him to go back to his cell. The next day, while having his blood pressure checked, claimant advised a facility doctor of the incident. X-rays revealed that claimant's nose was fractured, and his medical records indicate that he has a deviated septum. Claimant further testified that the doctor told him that the septum could be straightened by putting clamps in his nose. Claimant declined this treatment.
Claimant filed a grievance regarding the delay in treatment. Keough was sent to claimant to investigate the grievance, but claimant refused to speak to him because Keough was involved in the incident which led to the grievance. Claimant then filed another grievance claiming that the correction official involved in the original incident should not investigate that incident. The record contains no indication of how the original grievance was resolved.
On cross-examination, claimant stated that he was not harmed by the delay in treatment, but that he was upset because the prison officials did not provide immediate medical treatment. Claimant further stated that his claim was for medical negligence only, and that he was not stating a claim for negligence with regard to the assault itself.
Keough testified for defendant. He stated that he did recall E-block being evacuated on the date of the incident in question, but that he did not remember an assault. He further testified that he did not recall claimant advising him of an injury, and also did not remember sending claimant back to his cell with a bloody nose.
At the close of claimant's case, counsel for defendant moved to dismiss the case for a number of reasons, including:
- claimant’s failure to make a prima facie case;
- claimant’s failure to establish medical malpractice insofar as no qualified medical expert testified regarding malpractice; and
- claimant’s failure to establish a claim for medical negligence, as it would not be within the expertise of a layperson to determine whether claimant needed medical treatment. Defendant also moved to dismiss on the grounds that no damages were shown to have resulted from the delay, and for improper service of the claim on the Attorney General's office under Court of Claims Act §11. The Court reserved decision on the motions, and further reserved decision at the close of the trial.
Court of Claims Act §11 (a) requires that a claim be served upon the Attorney General either by personal service or by certified mail, return receipt requested. In support of the motion to dismiss for improper service, defendant submitted into evidence the original envelope in which the claim was received by the Attorney General's office, together with claimant's affidavit of service.
That envelope contains a certified mail sticker, and the handwritten notation “Certified Mail Return Receipt Requested”. However, the envelope does not have the stickers which would be left on the envelope if a return receipt had been requested. Notably, claimant's affidavit of service indicates that the claim was sent certified mail, but makes no mention of sending it “return receipt requested.”
In response to defendant's motion, claimant produced a photocopy of a return receipt. However, the photocopy shows only the side of the receipt addressed to claimant, and shows a stamp stating “Received Apr 08 2004". There is no indication that this is a return receipt from a document received by the Attorney General's office. Claimant is required to use the precise method of service set forth in the statute (Hodge v State of New York, 213 AD2d 766 [1995]). When claimant's method of service is challenged, he must be able to produce a return receipt (Govan v State of New York, 301 AD2d 757, 758 [2003], lv denied, 99 NY2d 510; Pratt v State of New York, Ct Cl, June 20, 2003, Hard, J., Claim No. 107420, Motion Nos. M-66764, M-66765, Cross-Motion No. CM-66824 [UID # 2003-032-057]). Claimant's failure to produce adequate documentation that the claim was sent return receipt requested requires dismissal of the claim on jurisdictional grounds, and defendant's motion to dismiss could be granted solely on this basis.
However, defendant also moves to dismiss the claim based upon claimant’s failure to set forth a prima facie case of medical negligence. The State may be found liable for medical negligence where the negligence of the alleged omissions or acts complained of can be readily determined by the finder of fact, using common knowledge without the necessity for medical testimony (Coursen v New York Hosp.-Cornell Med. Ctr., 114 AD2d 254, 256 [1986]). Likewise, the State may also be found liable for medical negligence if its employees fail to comply with an institution's rules and regulations for dispensing medical care to inmates (Kagan v State of New York, 221 AD2d 7, 10 [1996]). In this case, whether or not defendant made a timely diagnosis of claimant's condition, and moreover whether claimant was damaged by the alleged delay, is not a matter which lies within the common knowledge of the trier of fact. For the Court to conclude that defendant was negligent in waiting to take x-rays of claimant's bloody nose until the day after the incident, and to determine whether claimant incurred any damages as the result of that delay, would require expert medical testimony (see Duffen v State of New York, 245 AD2d 653 [1997], lv denied 91 NY2d 810).
Further, claimant has not alleged the breach of any administrative rules or regulations pertaining to his treatment, or which indicate that defendant deviated from such procedures to claimant's detriment.
Claimant's failure to provide either any expert medical testimony, or any proof of deviation from institutional procedure in his treatment, is fatal to his claim for medical negligence, and requires dismissal of that claim.
Similarly, to the extent that claimant may allege that defendant committed medical malpractice, his claim must be dismissed due to his failure to present expert medical testimony that the care he received deviated from good and accepted standards of medical care (Rossi v Arnot Ogden Med. Ctr., 268 AD2d 916, 918 [2000], lv denied 95 NY2d 751).
The claim is therefore dismissed, and any motions not heretofore determined or upon which reservation was made are hereby denied.
Let judgment be entered accordingly.

November 14, 2006
Binghamton, New York

Judge of the Court of Claims

[1]. Claimant had made no prior complaint that he believed he was at risk of assault by another inmate.
[2]. Defendant's Exhibit A.
[3]. Claimant has not cited any directive, rule or regulation in support of his position.