Opinion
# 2014-028-511 Claim No. 116977 Motion No. M-84152
04-16-2014
ROBERTO CIAPRAZI v. THE STATE OF NEW YORK
ROBERTO CIAPRAZI, PRO SE HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Terrance K. DeRosa, Esq. Assistant Attorney General
Synopsis
Claimant's motion to set aside a judgment issued after trial, dismissing the claim, is denied. Claimant alleged a cause of action for dental malpractice but failed to prove a prima facie case because he did not offer any expert testimony.
Case information
| UID: | 2014-028-511 |
| Claimant(s): | ROBERTO CIAPRAZI |
| Claimant short name: | CIAPRAZI |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 116977 |
| Motion number(s): | M-84152 |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | ROBERTO CIAPRAZI, PRO SE |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Terrance K. DeRosa, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 16, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read on Claimant's motion to set aside an Order Directing Judgment, pursuant to CPLR 4404:
1. Notice of Motion and Affidavit in Support of Roberto Ciaprazi, pro se; andFiled papers: Claim - Answer - Order Directing Judgment of Hon. Richard E. Sise, filed October 16, 2013.
2. Affirmation in Opposition of Terrance K. DeRosa, AAG, with annexed Exhibit.
In considering Defendant's submission, the Court denies Claimant's request that it be rejected and not considered because of untimely service. Defendant's submission was several days late, but the Court perceives no reason to question counsel's statement that that was due to a miscalculation of the dates governing service of motion papers. The Court has the power to grant adjournments whether the request is made before or after expiration of the time originally fixed (CPLR 2004). Factors to be considered are prejudice to the opposing party, lack of willfulness, and public policy favoring resolution on the merits (Arias v First Presbyt. Church in Jamaica, 97 AD3d 712 [2d Dept 2012]). Any prejudice to Claimant was ameliorated by providing him with ample opportunity to submit reply papers if he wished to do so.
This claim arose on April 28, 2009, when, according to Claimant, a dentist at Sing Sing Correctional Facility was replacing fillings in two teeth and, in the process, cracked and damaged Claimant's right lower second premolar. The damage consisted of removing half of the outer structure of the tooth. Trial of this action was held on August 20, 2013, and at the conclusion of trial, the Court issued an oral verdict, dismissing the claim on the ground that Claimant failed to prove a prima facie case. Subsequently, a Order Directing Judgment was issued. Claimnt now moves to set aside that Order and the dismissal of his claim, pursuant to the Court's powers under CPLR 4404 (b).
According to Claimant, claim No. 116977 was dismissed because of the Court's rulings that 1) Claimant failed to make out a prima facie case of negligence because an expert witness was not presented and 2) that the evidence at trial showed malpractice, not negligence (Ciaprazi affidavit, ¶ 3). Somewhat later, he argues, [I]f I proved at trial that the defendant's agents committed malpractice, as the Court indicated that I did, and given that there was injury which flowed from that malpractice, it follows that the defendant was also legally negligent. Accordingly, the second justification for the oral order dismissing the claim . . . ought to be set aside and judgment should be entered in favor of the claimant.
(Ciaprazi affidavit, ¶ 11 [emphasis supplied]). In short, Claimant appears to believe that his claim was dismissed because he failed to prove a case of negligence, despite the fact that he succeeded in proving a case of malpractice. This is not accurate.
As Claimant notes, the elements of an action for negligence are a duty owed, a breach of that duty, and damages proximately caused by the breach (id., ¶ 7; Chapman v Silber, 97 NY2d 9, 22 [2001]; Van Nostrand v Froehlich, 44 AD3d 54, 68 [2d Dept 2007]). In a simple negligence claim, the general duty imposed is the duty to act with "due care." For example, Claimant refers to the State's duty to provide adequate, considerate and respectful medical care to its prisoners. This is a general duty typically described as the obligation to provide ordinary and appropriate health care and treatment to an institution's inmates (Gordon v City of New York, 120 AD2d 562 [2d Dept 1986], affd 70 NY2d 839 [1987]).
An action for malpractice is also a type of negligence claim, but it is a very specialized type: "the negligence of a member of a profession in his relations with his client or patient" (Cubito v Kreisberg, 69 AD2d 738, 742 [2d Dept 1979], affd 51 NY2d 900 [1980]).
Instead of the general duty to act with due care, which is applicable to simple negligence claims, the duty involved in a malpractice action is more particular and has three components: 1) the duty to possess the requisite knowledge and skill such as is possessed by the average member of the profession; (2) a duty to exercise ordinary and reasonable care in the application of such professional knowledge and skill; and (3) the duty to use his or her best judgment in the application of this knowledge and skill (see Littlejohn v State of New York , 87 AD2d 951, 952 [3d Dept 1982], citing Pike v Honsinger, 155 NY 201, 209-210 [1898]). There is also a locality aspect to this duty, for the professional must provide care that is acceptable in the community where he or she practices (Schrempf v State of New York, 66 NY2d 289, 295 [1985]).
The theory of simple negligence is restricted to cases where the alleged negligent act can be readily determinable by the trier of the facts by reliance on common knowledge. "Where the lack of due care may be discerned by the trier of fact on the basis of common knowledge, the action sounds in simple negligence; if professional skill and judgment are involved, the more particularized theory of medical malpractice applies" (Zellar v Tompkins Community Hosp., 124 AD2d 287, 288 [3d Dept 1986], quoted in Lomonaco v United Health Servs. Hosps, Inc., 16 AD3d 958, 960 [3d Dept 2005]).
Where the allegations of the claim relate to the treatment that was received by a patient, the more specialized theory of medical malpractice must be followed (see Twitchell v MacKay, 78 AD2d 125 [4th Dept 1980]; Hale v State of New York, 53 AD2d 1025 [4th Dept 1976]), and expert testimony is required to establish the requisite standards of knowledge and skill and their application (Morgan v State of New York, 40 AD2d 891 [3d Dept 1972], affd 34 NY2d 709 [1974]; Macey v Hassam, 97 AD2d 919 [3d Dept 1983]). It is also most often needed to establish the requisite causal connection between breach of duty and injury. "In the absence of expert medical proof that defendant's conduct, omissions or departures were a competent producing cause of any injury or damage to plaintiff . . . , plaintiff would have been unable to establish a prima facie case of medical malpractice" (Giambona v Stein, 265 AD2d 775, 776 [3d Dept 1999]).
Whether an action sounds in negligence or malpractice is determined by the type of wrongdoing alleged, not by the name given to the cause of action in the claim or complaint. It is the role of the court to determine the nature of the cause of action. In the medical and dental fields, allegations relating to the provision of medical, or dental, treatment by a licensed practitioner will be held to set forth a cause of action sounding in malpractice rather than simple negligence (Scott v Uljanov, 74 NY2d 673, 674-75 [1989]). Not surprisingly, one test for distinguishing between the two is determining "whether the case involves a matter of science or art requiring special knowledge or skill not ordinarily possessed by the average person... or is one where the common everyday experiences of the trier of the facts is sufficient in order to reach the proper conclusion" (Twitchell v MacKay, 78 AD2d 125, 127 [4th Dept 1980]). If it is the former, then expert testimony is required and the cause of action is one for malpractice; if it is the latter, no such testimony is needed and the cause of action is considered to be one for simple negligence (id.).
In the oral summation at the end of trial, this Court stated as follows:
The Defendant's motion to dismiss made at the conclusion of Claimant's case for failure to set forth a prima facie case is granted. It must be granted.While the claim has been drafted in such as fashion [as] to identify the causes of actions as negligence, and nowhere is there the phrase or term dental malpractice, indeed, the Court is not bound by the draftsman.
It is the Court's belief that this is a dental malpractice claim. That, indeed, the Claimant was required to put forth on its, his case, an expert, indeed to prove by a preponderance of the credible evidence that the care and treatment provided by Dr. Stukes, the DOCS' employee, that there was a deviation from the standard of dental care within the community in which this doctor practiced, and the Claimant has failed to do this.
(DeRosa affirmation, Exhibit A [transcript], p 172, lines 9-25, p. 173, lines 1-2).
In other words, the Court did not hold that Claimant had proven a claim for dental malpractice, as Claimant suggests in his submissions on this motion. Instead, the Court held that Claimant had pled a claim for malpractice.
The Court then held that Claimant had failed to prove a prima facie case of malpractice, and for that reason the claim was dismissed. In order for Claimant to prove that the dental treatment he received deviated from the accepted standard of care, he would have had to present authoritive testimony or other reliable evidence to establish what steps a dentist should employ in properly replacing dental fillings, proof that in this instance the dentist failed to perform those steps or performed additional or other steps that were contraindicated, and proof that his deviation from the accepted standard of practice caused the damage that Claimant suffered. No such evidence was offered at trial, and consequently the claim had to be dismissed for failure to make out a prima facie case.
Claimant's motion is denied.
April 16, 2014
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims