Demaille v. State, 522636

• Citation: 89 N.Y.S.3d 403,166 A.D.3d 1405
• Decision Date: 29 November 2018
• Docket Number: 522636
• Parties: Vincent DEMAILLE, Appellant, v. STATE of New York, Respondent.
• Court: New York Supreme Court Appellate Division

166 A.D.3d 1405
89 N.Y.S.3d 403

Vincent DEMAILLE, Appellant,
v.
STATE of New York, Respondent.

522636

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 15, 2018
Decided and Entered: November 29, 2018

Thomas F. Liotti, Garden City, for appellant.

Barbara D. Underwood, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.

Before: McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ.

MEMORANDUM AND ORDER

McCarthy, J.P.

Claimant, a former state prison inmate, was in the care and custody of defendant from April 2003 to April 2005. He suffered a spinal injury prior to entering defendant's custody, resulting in back surgery by John Galeno, an orthopedic surgeon, in February 2004. In March 2006, claimant filed a claim alleging that, while in defendant's custody, he was not provided adequate medical care to properly address his severe back, leg and ear pain. Defendant moved to dismiss the claim on timeliness grounds. The Court of Claims (Sise, P.J.) granted the motion in part, limiting claimant's causes of action to his allegations that (1) defendant provided claimant with inadequate or incorrect treatment of his ear condition from August 2003 until his release from incarceration, (2) defendant provided claimant with negligent medical treatment of injuries affecting his back and legs from October 5, 2004 to January 4, 2005, and (3) defendant negligently required claimant to perform strenuous work that damaged his health from October 5, 2004 to January 4, 2005.

At trial, claimant testified on his own behalf, and the deposition testimonies of three physicians employed by defendant were admitted into evidence. Claimant unsuccessfully attempted to produce Galeno as a fact witness. The Court of Claims (Milano, J.), having determined that claimant failed to prove any aspect of his claim, entered judgment against him in April 2015. In June 2015, claimant moved to renew and reargue the matter. The court denied the motion as untimely and, in any event, as lacking in merit. Claimant appeals from both the judgment entered in favor of defendant and the order denying his motion for reconsideration.

The Court of Claims properly dismissed the claim for failure of proof. Regardless of whether a claim is characterized as sounding in negligence or medical malpractice, "w here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is required to establish that defendant's alleged negligence or deviation from an accepted standard of care caused or contributed to [the] claimant's injuries" ( Wood v. State of New York, 45 A.D.3d 1198, 1198, 846 N.Y.S.2d 717 [2007] [internal quotation marks, brackets, ellipsis and citation omitted]; accord Davis v. State of New York, 151 A.D.3d 1411, 1412, 58 N.Y.S.3d 649 [2017] ; see

89 N.Y.S.3d 406

Tatta v. State of New York, 19 A.D.3d 817, 818, 797 N.Y.S.2d 588 [2005], lv denied 5 N.Y.3d 712, 806 N.Y.S.2d 162, 840 N.E.2d 131 [2005] ). Claimant's testimony and the medical records demonstrate that he repeatedly complained about pain in his back, legs, ear and head, and that defendant sometimes delayed in performing tests and arranging consultations after they were ordered. Claimant also asserts that defendant failed to provide certain ordered items, provided ineffectual medication to address his pain and did...