New York State Court of Claims

New York State Court of Claims
RIVERA v. STATE OF NEW YORK, # 2018-015-150, Claim No. 128397


Claimant failed to prove either a deviation in the standard of medical care or that DOCCS' alleged failure to provide orthotics was a proximate cause of his injury. No expert medical evidence was offered at trial.

Case information

UID: 2018-015-150
Claimant(s): ANGEL RIVERA, DIN 15A4422
Claimant short name: RIVERA
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 128397
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Angel Rivera, Pro Se
Defendant's attorney: Honorable Barbara D. Underwood, Attorney General
By: Douglas R. Kemp, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 21, 2018
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


The claim, filed on August 22, 2016, alleges the defendant failed to provide the claimant necessary and appropriate medical care while he was an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS). Trial of this matter was held by video conference on June 5, 2018.

The claimant testified at trial that he suffers from paralysis in his left foot as a result of suffering a gunshot wound at the age of 18. He entered DOCCS custody in November 2015 and was first assigned to Downstate Correctional Facility where he was issued a sneaker pass because of the pain and discomfort he experienced while wearing DOCCS' standard-issue boots, as a result of his left foot injury. He was then transferred to Washington Correctional Facility where he explained to the medical staff during his medical intake examination that he suffered from drop foot and requested that he be issued a sneaker pass. His request was denied and, instead, he was issued a standard AFO brace to address his foot-drop condition. The claimant later returned and informed the medical staff that the brace was "ill fitting",(1) and the Washington Correctional Facility medical staff submitted a request for a custom brace on his behalf. That request was denied by DOCCS central staff in Albany.

The claimant explained that between his December 2015 arrival at Washington Correctional Facility and May 2016 he experienced problems including tripping, calluses and discomfort as a result of wearing standard-issue boots.

In mid-May 2016 the claimant noticed a bump on his left foot and reported to the infirmary. X-rays taken soon thereafter indicated that the claimant had a fractured toe on his left foot as well as two cysts. Following the X-rays claimant was provided a "cast shoe" temporarily until he saw an orthopedic specialist at Coxsackie Correctional Facility (Coxsackie). The claimant was transferred to Coxsackie where he was examined by a physician who, according to the claimant, merely trimmed his toenails and nothing more. He then returned to Washington Correctional Facility where he was again given a cast shoe. The claimant contends he was provided no follow up treatment with regard to the fracture and cysts in his left foot and that he is in constant pain. The cast shoe eventually caused the claimant to experience balance issues and hip pain, and he returned the shoe to facility medical staff. According to the claimant he has never received orthopedic boots and instead was issued "medical boots" that are now damaging the top of his foot.

On cross-examination the claimant testified that he was confined at Washington Correctional Facility from December 5, 2015 through March 2017.

The State has a fundamental duty to provide adequate medical care to inmates in its prisons without undue delay (Auger v State of New York, 263 AD2d 929 [3d Dept 1999]; Kagan v State of New York, 221 AD2d 7 [2d Dept 1996]). This duty has been defined in terms of both negligence and malpractice (Lowe v State of New York, 35 AD3d 1281, 1282 [4th Dept 2006]). Where claimant's allegations relate entirely to the professional skill and judgment of his treating professionals, a medical malpractice cause of action is alleged (Maki v Bassett Healthcare, 85 AD3d 1366 [3d Dept 2011], appeal dismissed 17 NY3d 855 [2011], lv dismissed in part and denied in part 18 NY3d 870 [2012]). To establish a prima facie case of medical malpractice, the claimant is "required to prove, through a medical expert, that [the defendant] breached the standard for good and acceptable care in the locality where the treatment occurred and that [this] breach was the proximate cause of [his] injury" (Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]; see also Morgan v State of New York, 40 AD2d 891 [3d Dept 1972], affd 34 NY2d 709 [1974], cert denied 419 US 1013 [1974]); Abascal v State of New York, 93 AD3d 1216 [4th Dept 2012], lv denied 19 NY3d 805 [2012]; Myers v State of New York, 46 AD3d 1030 [3d Dept 2007]; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]). Where only nondiscretionary medical protocols are alleged to have been breached, a cause of action for ministerial neglect is stated (Kagan, 221 AD2d at 10-11). Under either theory, liability does not attach absent competent medical evidence that the defendant's negligence was a proximate cause of the claimant's ensuing medical problems (Tolliver v State of New York, 133 AD3d 990 [3d Dept 2015], lv denied 26 NY3d 919 [2016]; Knight v State of New York, 127 AD3d 1435 [3d Dept 2015], appeal dismissed 25 NY3d 1212 [2015]; Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]; Trottie, 39 AD3d 1094; Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 [2005]).

Here, claimant failed to establish a deviation from the appropriate standard of care through the submission of medical evidence. In addition, although claimant's medical records reflect he suffers from a lower back injury, deep vein thrombosis and foot pain, without expert medical opinion evidence the Court cannot conclude that DOCCS' failure to issue either an orthopedic brace or a sneaker pass was the proximate cause of claimant's ensuing medical issues. As a result, the claim is dismissed as a matter of law.

Let judgment be entered accordingly.

August 21, 2018

Saratoga Springs, New York


Judge of the Court of Claims

1. All quotations are from the audio recording of the trial.