New York State Court of Claims

New York State Court of Claims
GRAYSON v. THE STATE OF NEW YORK, # 2010-015-102, Claim No. 115266, Motion No. M-77187


Defendant's motion for summary judgment in inmate's dental malpractice case was denied for failure to establish its prima facie entitlement to dismissal.

Case information

UID: 2010-015-102
Claimant short name: GRAYSON
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115266
Motion number(s): M-77187
Cross-motion number(s):
Claimant's attorney: Anthony Grayson, Pro Se
No Appearance
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino
Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 7, 2010
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Defendant moves for summary judgment dismissing the instant claim pursuant to CPLR 3212.

Claimant, a pro se inmate, alleges causes of action for dental malpractice and lack of informed consent in relation to dental care provided while he was an inmate at Great Meadow Correctional Facility (defendant's Exhibit A, Claim, # 7). In support of its motion for summary judgment, defendant submitted the affidavit of Mary J. D'Silva, a Board Certified dentist and the Department of Correctional Services Director of Correctional Dental Services. Based upon her review of the claimant's dental records(1) Dr. D'Silva avers that "a temporary filling was placed in claimant's #19 tooth" on January 24, 2008. Claimant was subsequently prescribed antibiotics and pain medication on March 17, 2008 following an X-ray examination which showed an infection in the bone "that approximated the nerve" (affidavit of Mary J. D'Silva, 5). Claimant's tooth number 19 was extracted by Dr. Robert Carpenter, DDS, an oral surgeon, on April 22, 2008. Claimant was seen in follow-up on April 28, 2008 at which time swelling and tenderness was noted. Pain medication and a mouth rinse were dispensed and claimant was advised that the surgical area would require six to eight weeks to heal. Claimant attended sick-call on May 5, 2008 and May 6, 2008 complaining of numbness in his lower left jaw. He was advised by the dentist on duty, Dr. Leonard Elzey, DDS, that no treatment was required and additional time was required to permit the area to heal. An oral rinse was administered on May 19, 2008. According to Dr. D'Silva's affidavit, claimant was evaluated for numbness on May 28, 2008 at which time he indicated he "feels better" and declined a follow-up trip to Great Meadow Correctional Facility (affidavit of Mary J. D'Silva, 11). Dr. D'Silva rendered the following opinion with respect to the claimant's condition and treatment:

"13. Based upon my professional education, experience and expertise in the field of dental medicine, the numbness claimant complained of is part of the accepted or standard complication with any such extraction. In claimant's specific case, tooth #19 was infected and such infection was close to the nerve. After the extraction, the subsequent dental care and customary healing time resolved any numbness the claimant had experienced.

14. It is . . . my expert opinion, that there was no deviation from the standard of care during and following claimant's tooth extraction. I further state that the patient's treatment at the Great Meadow Correctional Facility and the Sullivan Correctional Facility conformed to all reasonable and acceptable standards of the dental profession."

On a motion for summary judgment in a dental malpractice action, the defendant must demonstrate, prima facie, that the dental services provided were performed consistent with good and accepted dental practice (Williams v Sahay, 12 AD3d 366, 368 [2004]; Stancavage v Mirman, 309 AD2d 918, 919 [2003]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

While Dr. D'Silva's opinion that there was no deviation from the applicable standard of care was based upon a review of the claimant's dental records, the records were not submitted in support of defendant's motion. "It is settled and unquestioned law that opinion evidence must be based on facts in the record or personally known to the witness" (Cassano v Hagstrom, 5 NY2d 643, 646 [1959]; see also Romano v Stanley, 90 NY2d 444, 451-452 [1997]; Wagman v Bradshaw, 292 AD2d 84 [2002]). As the defendant's expert had no personal knowledge of the treatment rendered to the claimant, the failure to submit the records upon which she relied in formulating her opinion requires denial of the motion (cf. Menard v Feinberg, 60 AD3d 1135 [2009] [dentist's submission of deposition testimony, dental records and factually specific affidavits was sufficient to make prima facie showing for purposes of a summary judgment motion]).

With respect to the claimant's cause of action for lack of informed consent, "lack of informed consent requires a showing that (1) defendant failed to disclose to [claimant] such alternatives and reasonably foreseeable risks and benefits to the procedure that a reasonable dental practitioner would disclose in similar circumstances to permit a knowledgeable evaluation, (2) a reasonably prudent patient would not undergo the treatment if fully informed, and (3) the lack of informed consent was a proximate cause of [claimant's] injury" (Cole v Tischler, ___AD3d ___, ___ 2009 NY Slip Op 10019 [2009], citing Public Health Law 2805-d [1], [3]). Nothing in the affidavit of Dr. D'Silva addresses the allegations in the claim asserting a lack of informed consent.

Defendant's motion for summary judgment is denied with leave to renew upon a proper showing.

January 7, 2010

Saratoga Springs, New York


Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated September 11, 2009;
  2. Affirmation of Paul F. Cagino dated September 11, 2009 with exhibits;
  3. Affidavit of Mary J. D'Silva sworn to on August 24, 2009.

1. Although Dr. D'Silva states in her affidavit that she reviewed the claimant's dental records, she failed to attach them to the affidavit as indicated therein.