Download PEREZ v. STATE OF NEW YORK, #2000-018

PEREZ v. STATE OF NEW YORK, #2000-018-049, Claim No. 97844
Synopsis
Claimant failed to prove case by a preponderance of the evidence.
Case Information
UID:
2000-018-049
Claimant(s):
HERBY PEREZ
Claimant short name:
PEREZ
Footnote (claimant name) :
Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s):
97844
Motion number(s):
Cross-motion number(s):
Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
HERBY PEREZ
Pro Se
ELIOT SPITZER
Attorney General of the State of New York
By: PATRICIA BORDONARO, ESQUIRE
Assistant Attorney General
Defendant’s attorney:
Third-party defendant’s attorney:
Signature date:
October 5, 2000
City:
Syracuse
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)
Decision
Claimant seeks compensation for all of his personal suffering as a result of the defendant’s alleged
negligence, dental malpractice, negligent infliction of emotional distress, and ministerial neglect pursuant to Public
Officers Law §73(1)(d).
Claimant testified that while an inmate at Ogdensburg Correctional Facility, he went to the dental office on
January 13, 1998, to have a tooth removed. In the process of removing the tooth, it broke off. The dentist then
made an incision to claimant’s gum to remove the remaining piece of the tooth, which required three stitches to
close. According to claimant, the dentist never gave him instructions for how to care for the extraction site and did
not provide any pain medication or antibiotics. Claimant testified that the left side of his face was swollen and he
suffered significant pain. On January 15, 1998, claimant went out for sick call in order to obtain some pain
medication. On January 21, 1998, when the dentist removed the stitches, claimant’s face was still swollen.
Apparently, claimant and the dentist engaged in a verbal altercation at that time, and the dentist allegedly threw
claimant out of his office. Claimant apparently went out to sick call the next day, January 22, 1998, because he was
still in pain. The dentist examined him, took an x-ray and could find nothing wrong.
Claimant testified that he submitted a grievance request for a referral to an outside specialist. That request
was denied. Although the claim asserts both negligence and malpractice, whether a tooth has been properly
extracted and whether follow-up treatment is necessary; and if so, what follow-up treatment is appropriate based
upon the standard of care in the profession, are matters outside the common knowledge of the Court as fact finder.
(Wells v State of New York, 228 AD2d 581, lv. denied, 88 NY2d 814; Hale v State of New York, 53 AD2d 1025, lv.
denied, 40 NY2d 804) As a result, expert testimony is necessary to allow the Court to render a proper determination
of whether the duty of care owed to the claimant was breached. (Pike v Honsinger, 155 NY 201; Hale v State of
New York, supra; Williams v State of New York, 164 Misc 2d 783, 785) Medical records alone are insufficient to
permit the Court to determine whether the State’s dentist committed malpractice. Without expert testimony,
claimant has failed to establish a prima facie case of malpractice.
Claimant also cannot recover for ministerial negligence. Ministerial negligence involves the potential
liability of a governmental entity for negligently performed ministerial acts of its employees meaning conduct
requiring adherence to a governing rule with a compulsory result. (Lauer v City of New York, 95 NY2d 95, 99) A
ministerial act, as opposed to a discretionary act, is not protected by governmental immunity; and therefore, liability
can attach for ministerial action which is tortious. (Lauer v City of New York, supra) Whether a dentist properly
removed a tooth and provided appropriate follow-up treatment are not ministerial matters but rather issues of dental
malpractice, which as determined above, claimant failed to prove.
Claimant’s negligent infliction of emotional distress cause of action fails as well. Such a cause of action
requires proof that the conduct is so extreme in degree and outrageous in character as to go beyond all possible
bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized community. (Naturman v
Crain Communications, 216 AD2d 150; Hernandez v City of New York, 255 AD2d 202) The conduct must be such
that it
unreasonably endangers one’s physical safety or causes fear for one’s physical safety. (Losquadro v Winthrop
University Hosp. 216 AD2d 533) Claimant has failed to show the defendant engaged in such conduct.
Accordingly, the claim is DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.
October 5, 2000
Syracuse, New York
HON. DIANE L. FITZPATRICK
Judge of the Court of Claims