New York State Court of Claims

New York State Court of Claims

GIBSON v. STATE OF NEW YORK, #2008-039-095, Claim No. 113816, Motion No. M-75005


Synopsis


Claimant’s motion for summary judgment is denied. The Court finds that issues of material fact exist as to whether the delay in providing claimant with prescription eyeglasses was unjustified. Claimant did not provide the Court with proof to establish that the alleged delay of 81 days violated any prison administrative protocols or that the delay could be attributed to any deliberate conduct by defendant. Moreover, defendant offers proof which suggests that the delay was justified. The Court further notes that claimant has not offered any expert affidavit to establish that his alleged headaches, eyestrain and blurred vision were caused by the lack of prescription eyeglasses during the period in question.

Case Information

UID:
2008-039-095
Claimant(s):
DANA GIBSON
Claimant short name:
GIBSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113816
Motion number(s):
M-75005
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Dana Gibson, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michael T. KrenrichAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 1, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On June 8, 2007, claimant filed a claim with the Clerk of the Court alleging, in relevant part, that defendant was negligent when it failed to provide him with prescription eyeglasses in a timely manner causing him to suffer blurred vision, eyestrain and headaches. Issue was joined, and claimant now moves the Court for an award of summary judgment. In support of his motion, claimant offers his own affidavit wherein he states, among other things, that on March 1, 2007, while an inmate at Clinton Correctional Facility (hereinafter Clinton) he was examined by an optometrist that was employed by the New York State Department of Correctional Services (hereinafter DOCS). The optometrist concluded that claimant required prescription eyeglasses and an order for the necessary eyewear was submitted. On April 16, 2007, claimant was transferred from Clinton to Upstate Correctional Facility (hereinafter Upstate). On April 30, 2007, Upstate medical personnel advised claimant that the facility had received his eyeglasses and that he would receive them during the facility optometrist’s monthly visit. On May 21, 2007, the facility optometrist was unable to locate claimant’s eyeglasses. Claimant was subsequently informed that his prescription eyeglasses were defective upon arriving at Upstate and a request for repairs to the eyeglasses was made. Claimant contends that he suffered personal injuries for more than 81 days as a result of defendant’s delay in providing him with prescription eyeglasses.

Defendant opposes the motion and contends that claimant has not offered any evidence to establish that the delay was unreasonable. Defendant further contends that the claim is for medical negligence thereby requiring claimant to provide an expert affidavit in support of his motion.
“It is settled that an inmate, who ‘must rely on prison authorities to treat [the inmate’s] medical needs . . . has a fundamental right to reasonable . . . and adequate . . . medical care’ ” (Kagan v State of New York, 221 AD2d 7, 11 [1996], quoting Estelle v Gamble, 429 US 97, 103 [1976] and Powlowski v Wullich, 102 AD2d 575, 587 [1984]). “Further, it is the State’s duty to render medical care ‘without undue delay’ and, therefore, whenever ‘delays in diagnosis and/or treatment [are] a proximate or aggravating cause of [a] claimed injury’, the State may be liable” (id., quoting Marchione v State of New York, 194 AD2d 851, 855 [1993]).
Here, the Court finds that issues of material fact exist as to whether the delay in providing claimant with prescription eyeglasses was unjustified. Claimant did not provide the Court with proof to establish that the alleged delay of 81 days violated any prison administrative protocols, or that the delay could be attributed to any deliberate conduct by defendant (see Kagan v State of New York, supra at 11-12; Green v State of New York, Ct Cl, Schaewe, J., December 20, 2007, Claim No. 109512, Motion No. M-73700, UID # 2007-044-586).
Moreover, defendant offers proof which suggests that the delay was justified. In opposition to the motion, defendant offers the affidavit of Nancy Smith, a Nurse Administrator I for DOCS at Upstate, who was responsible for conducting investigations in connection with claimant’s grievance appeals to the Superintendent. Smith avers that pursuant to DOCS Division Health Services Policy and Manual, claimant was examined by an optometrist and “a new pair of prescription eyeglasses was ordered.” Smith states that the eyeglasses could not be provided to claimant because they were received without a nose piece and the optometrist was unable to repair them. Smith further provides that a second pair of eyeglasses were ordered and that, on June 18, 2007, the glasses were received by Upstate and issued to claimant.
The Court also notes that claimant has not offered an expert affidavit to establish that his alleged headaches, eyestrain and blurred vision were caused by the lack of prescription eyeglasses during the period in question (see id.; see also Herouard v State of New York, Ct Cl, Ruderman, J., February 9, 2005, Claim No. 104423, UID # 2005-010-007). “Whether the claim is grounded in negligence or medical negligence, ‘[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, 19 AD3d 817, 818 [2005], lv denied 5 NY3d 712 [2005]; see also Green v State of New York, supra).
Accordingly, M-75005 is hereby denied.
October 1, 2008
Albany, New York
HON. JAMES H. FERREIRA
Judge of the Court of Claims
Papers Considered
:
  1. Notice of Motion dated May 8, 2008;
  2. Supporting Affidavit of Dana Gibson sworn to on May 8, 2008 with exhibits;
  3. Affirmation in Opposition by Michael Krenrich, AAG dated July 21, 2008 with exhibits; and
  4. Reply Affidavit by Dana Gibson sworn to on July 29, 2008.