New York State Court of Claims

New York State Court of Claims
FERNANDEZ v. THE STATE OF NEW YORK, # 2018-015-134, Claim No. 124719, Motion No. M-92010


Motion to vacate default in appearing for trial was denied. Claimant's action sounded in medical malpractice for which a affidavit from a medical expert to establish the potential merit of the claim was required.

Case information

UID: 2018-015-134
Claimant short name: FERNANDEZ
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 124719
Motion number(s): M-92010
Cross-motion number(s):
Claimant's attorney: Franzblau Dratch, P.C.
By: Brian M. Dratch, Esq.
Defendant's attorney: Honorable Barbara D. Underwood, Attorney General
By: Anthony Rotundi, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: June 20, 2018
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant's counsel moves to vacate the dismissal of the instant claim, entered upon his client's default in appearing for trial on January 25, 2018.

Claimant, an inmate of the Department of Corrections and Community Supervision (DOCCS), seeks damages for medical malpractice arising from the alleged failure of DOCCS' medical staff to issue a "Medical Limitations Permit" allowing him to refrain from work activities at Great Meadow Correctional Facility (amended claim, 10 [b]).

The following allegations are taken from the amended claim, sworn to December 15, 2015, filed in the Office of the Clerk of the Court of Claims on December 18, 2015.(1) Claimant alleges that he underwent shoulder surgery at Mount Vernon Hospital on November 13, 2012 and was returned to the infirmary at Great Meadow where he was held for postoperative observation (id. at 8). Upon his discharge from the infirmary on November 15, 2012, Dr. Lee issued a Standard Medical No-Duty Permit requiring that claimant remain in his cell and refrain from work and exercise for a period of 30 days (id. at 9). Claimant was next seen for postoperative follow-up care in the orthopedic clinic on December 13, 2012 (id. at 10). He was examined by Dr. Mazda who instructed him to refrain from sports and exercise for three to six months and commence postoperative physical therapy (id.).

On December 16, 2012 claimant was "ordered to report to the facility kitchen" where he was informed by correction officers that his "Medical No-Duty permit" had expired and, as a result, he was automatically cleared to return to work on full duty status (id. at 11). When claimant informed the officers that he had not been medically cleared to return to work, the officers advised him that Nurse Joffee had indicated claimant had been cleared to work by Dr. Lee. Under threat of penalty for disobeying a direct order, claimant removed his sling and commenced full-duty work detail in the facility kitchen where he immediately re-injured his shoulder (id.). After a regimen of physical therapy, claimant was ordered to return to full-duty work detail on February 12, 2013. By this time claimant's condition had worsened to the point he was unable to raise his arm; however, when he informed a correction officer that he was unable to perform the work, he was told he had been medically cleared by Dr. Lee. When claimant again informed the officer that he was unable to perform the work, he was ordered to exit the kitchen and return to his unit for a "work related search" (id. at 17). Claimant alleges he was unable to raise his arm for the search and was issued a misbehavior report as a result (id.). At the prison disciplinary hearing, both Correction Officer Johnson and Nurse Joffee testified that claimant had been medically cleared to return to work by Dr. Lee. Claimant alleges this testimony was false, however, and that claimant had not, in fact, been seen by Dr. Lee since November 15, 2012 (id.). Claimant reported his injury to the attending nurse at the facility clinic on February 21, 2013, underwent further X-ray examination and was prescribed exercises by the facility physicians (id. at 18). Claimant was examined by Dr. Lee on March 25, 2013 and was issued a Medical No-Duty/Light Duty permit. Claimant was again seen by Dr. Lee on May 28, 2013 at which time a 30-day Medical Limitations permit was issued indicating claimant should not engage in sports or lift more than 10 pounds (id. at 19). Following his continuing complaints of pain, claimant was again seen in the orthopedic clinic by Dr. Holder on March 5, 2014 at which time he was informed of the need for further surgery on his shoulder (id. at 21). Claimant underwent a second right shoulder surgery at Mount Vernon Hospital on June 17, 2014 (id. at 22). Claimant alleges that despite his physical limitations after the second surgery, security staff at the prison continued to require that he remove his sling in order to place his hands on the wall (id. at 24, 25, 26). After being escorted to the facility clinic for his suture removal on July 1, 2014, claimant alleges he was ordered to place his hands on the wall to be searched (id. at 26). Claimant placed his left hand on the wall at which time Correction Officer Scott "[g]rabbed and [s]queezed" his right shoulder causing claimant to feel a tearing sensation (id.). On August 5, 2014 claimant was informed that his medical limitations permit had expired and that he was required to work as a porter beginning August 11, 2014. Claimant was re-injured while performing the required work on August 11th and 12th, 2014 (id. at 33). Claimant alleges that his second shoulder surgery resulted from the failure of DOCCS' physicians to issue a medical permit allowing him to refrain from working, and similar conduct following the second surgery caused him to suffer pain and limitation of motion of his right arm and shoulder.

The claim was scheduled for trial on the issue of liability on January 25, 2018. Although claimant was the only witness scheduled to testify in support of his claim, he failed to appear and the defendant's motion to dismiss the claim upon his default was granted. In support of claimant's motion to vacate the dismissal, his attorney, Brian M. Dratch, Esq., indicates the default was due to the fact of claimant's incarceration and the failure of his office to request a Body Order directing DOCCS to transport the claimant to Court. Claimant's counsel also asserts that the claim is meritorious as evidenced by the verified claim and claimant's examination before trial transcript.

In order to vacate a dismissal entered upon default, the moving party must establish a reasonable excuse for the default and a meritorious claim (Bank of N.Y. v Mohammed, 130 AD3d 1419, 1420 [3d Dept 2015]; Loucks v Klimek, 108 AD3d 1037, 1038 [4th Dept 2013]; Watson v New York City Tr. Auth., 38 AD3d 532 [2d Dept 2007]). Here, claimant's counsel asserts that "due to a mistake from the undersigned's office" a request for a Body Order was not conveyed to the Court to secure his client's presence at trial (affirmation of Brian M. Dratch, Esq., dated March 21, 2018, 6). In appropriate circumstances, the excuse advanced by claimant's counsel, law office failure, may qualify as reasonable excuse for a default (CPLR 2005; Luderowski v Sexton, 152 AD3d 918, 920 [3d Dept 2017]; Political Mktg., Int'l, Inc. v Jaliman, 67 AD3d 661 [2d Dept 2009]). As noted by the Court in Luderowski, the reasonableness of an excuse is assessed "based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits" (152 AD3d at 920 [internal quotation marks and citation omitted]; see also Nichols v Agents Serv. Corp., 133 AD2d 912 [3d Dept 1987]). Here, it does not appear that claimant or his counsel unduly delayed prosecuting this particular case, counsel moved to vacate the default shortly after it was entered, and defendant does not assert any prejudice in the event the matter is restored. Nevertheless, claimant's failure to establish the potential merit of his claim through the submission of an affidavit from a medical expert requires that the motion be denied.

The law is well settled that where a claim sounds in medical malpractice rather than ordinary negligence, an affidavit of merit from a medical expert is required to vacate a default (Biton v Turco, 88 AD3d 519 [1st Dept 2011], lv dismissed 30 NY3d 1081 [2016], rearg denied 31 NY3d 992 [2018]; Chiaramonte v Coppola, 81 AD3d 426 [1st Dept 2011]; Kaufman v Bauer, 36 AD3d 481 [1st Dept 2007]; Nutting v Associates in Obstetrics & Gynecology, 130 AD2d 870 [3d Dept 1987]; Perez v Astoria Gen. Hosp., 260 AD2d 457 [2d Dept 1999]). In determining the nature of the duty allegedly breached, courts look to whether the challenged conduct "bears a substantial relationship to the rendition of medical treatment by a licensed physician" or whether "the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the [medical facility's] failure in fulfilling a different duty,' " (Weiner v Lenox Hill Hosp. (88 NY2d 784, 788 [1996]). Where the challenged conduct relates to "an integral part of the process of rendering medical treatment" such as an assessment of a patients supervisory and treatment needs, the action sounds in medical malpractice (Scott v Uljanov, 74 NY2d 673, 675 [1989]; Estate of Bell v WSNCHS N., Inc., 153 AD3d 498 [2d Dept 2017] [failure to restrain elderly patient in hospital bed constituted medical malpractice]; Martuscello v Jensen, 134 AD3d 4 [3d Dept 2015] [failure to supervise elderly patient in examination room]). As stated by the Court in Miller v. Albany Med. Ctr. Hosp. (95 AD2d 977, 978 [3d Dept 1983]):

"The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of common everyday experience of the trier of the facts."

The duty allegedly breached here was the failure to exempt claimant from work activities at the time he was re-injured. In this regard, claimant argues that he should have been placed on medical no-duty status, but was not. As is clear from the Medical No-Duty Status form attached to the amended claim, such status may only be conferred by a medical doctor or registered nurse based on his or her knowledge of an inmate's physical condition gained during the course of treatment. What claimant's actual physical condition was and whether, given his condition, any limitation on his participation in work, exercise or sports activities was appropriate, and the duration of any such limitation, were medical determinations. As such, the conduct in issue bore a substantial relationship to the rendition of medical treatment. Accordingly, the failure to submit an affidavit of merit from a medical expert requires that the instant motion to vacate claimant's default in appearing for trial be denied.

Based on the foregoing, claimant's motion is denied.

June 20, 2018

Saratoga Springs, New York


Judge of the Court of Claims

Papers considered:

1. Notice of Motion to Vacate Dismissal dated March 21, 2018;

2. Affirmation of Brian M. Dratch, Esq., dated March 21, 2018, with Exhibits A and B;

2. Affirmation in Opposition dated April 10, 2018.

1. Claimant's counsel supports his motion with only the initial claim (claimant's Exhibit B), which was later superceded by an amended claim. The Court takes judicial notice of the amended claim which was filed in the Office of the Clerk of the Court of Claims on December 18, 2015 and deemed to be the "operative pleading" by Decision and Order of the Hon. Stephen J. Mignano dated January 13, 2016.