SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
January 24, 2012
ROSA JULIANO, RESPONDENT,
S.I. VET CARE, APPELLANT.
Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered August 12, 2010.
Juliano v S.I. Vet Care
Decided on January 24, 2012
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: WESTON, J.P., PESCE and RIOS, JJ
The judgment, after a non-jury trial, awarded plaintiff the principal sum of $250.
ORDERED that the judgment is reversed, without costs, and the action is dismissed.
In this small claims veterinary malpractice action, plaintiff seeks to recover $250 in fees paid to an emergency veterinary clinic after her dog was first treated by defendant veterinary office. At the non-jury trial, plaintiff claimed that defendant released her dog too soon after surgery, without sufficient pain medication and sedation. Defendant's owner, testifying on behalf of defendant, claimed that the dog was sufficiently sedated and given pain medication prior to the dog's release, and that defendant's staff never deviated from the accepted veterinary standards of practice. The Civil Court found in favor of plaintiff and awarded her the principal sum of $250.
The standard of review on an appeal of a small claims judgment is whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (CCA 1807). Generally, in a malpractice action, expert testimony is necessary to establish the applicable standard of care, as well as a deviation from such standard, which resulted in injury, unless the matter is one within the experience and observation of the average layperson (see generally 530 E. 89 Corp. v Unger, 43 NY2d 776 ; Paul v Boschenstein, 105 AD2d 248 ; Macey v Hassam, 97 AD2d 919 ). Expert testimony, however, may be dispensed with in veterinary malpractice actions "where the very nature of the acts complained of bespeaks improper treatment and malpractice" (Mathew v Jerome L. Klinger, D.V.M., P.C., 179 Misc 2d 609, 610 [App Term, 9th & 10th Jud Dists 1998]; see also Matter of Restrepo v State of New York, 146 Misc 2d 349, 355 , affd 179 AD2d 804 ). This is not such an action.
In the instant case, plaintiff's failure to offer any expert testimony to prove that defendant's treatment of her dog deviated from accepted veterinary standards of practice was fatal to her claim. Plaintiff, as a layperson, was not qualified to testify about the appropriate level of sedation or pain medication which should have been given to her dog. She herself testified that, prior to releasing her dog from defendant's facility, defendant's attending veterinarian told her that she "had [already] given [the dog] more [pain killers] than she should have." As plaintiff did not demonstrate that the treatment of her dog was inconsistent with accepted veterinary standards of practice, we find that the Civil Court's determination as to defendant's liability did not comport with the small claims mandate that "substantial justice" be done between the parties (CCA 1807).
Accordingly, the judgment is reversed and the action is dismissed.
Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: January 24, 2012
© 1992-2012 VersusLaw Inc.