Adesso v Long Is. Veterinary Specialists

[*1] Adesso v Long Is. Veterinary Specialists 2014 NY Slip Op 50611(U) Decided on March 27, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 27, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., MARANO and TOLBERT, JJ
2013-419 N C.

Victor Adesso, Jr., Respondent,

against

Long Island Veterinary Specialists, Appellant.

Appeal from a judgment of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), entered September 14, 2012. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,500.

ORDERED that the judgment is reversed, without costs, and the action is dismissed.

On April 3, 2012, plaintiff found a cat lying in the road after it presumably had been struck by a car. He immediately brought the cat to defendant's emergency facility for evaluation and treatment. An initial examination revealed that the cat's hip had been fractured. After the cat's condition had stabilized for 24 hours, defendant's veterinarian performed a hip removal under anesthesia. Plaintiff, who had decided to keep the cat, signed two payment estimates which contained language regarding the risks of surgery and anesthesia, as well as an authorization for surgical treatment, on which he acknowledged that no guarantees or assurances had been made as to the results of surgery. Although the surgery was performed properly, the cat died as a result of a reaction to the anesthesia. Plaintiff commenced this small claims action to recover a refund of the $3,092.55 that he had paid to defendant prior to the surgery, alleging that defendant had failed to provide the services for which he had paid. After a nonjury trial, the District Court awarded plaintiff judgment in the principal sum of $1,500. Defendant appeals from the judgment.

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" (UDCA 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 [1977]; Macey v Hassam, 97 AD2d 919 [1983]). Although expert testimony 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 [Ct Cl 1989], affd 179 AD2d 804 [1992]), this is not such an action.

Here, plaintiff did not call an expert witness and, in fact, he himself testified that he did not believe that defendant was negligent. Nor did plaintiff offer any evidence to establish that defendant's treatment of the cat was not in conformity with accepted veterinary standards of [*2]practice (see Harrington v Berg, 5 Misc 3d 135[A], 2004 NY Slip Op 51488[U] [App Term, 9th & 10th Jud Dists 2004]). Consequently, there was no basis to find defendant liable for veterinary malpractice. Similarly, since plaintiff did not demonstrate that defendant had made "an express special promise to effect a cure or accomplish some definite result" (Clarke v Mikail, 238 AD2d 538, 538 [1997]), he did not establish any basis for liability for breach of contract.

We note that it was improper for the District Court to conduct its own independent research and to refer to an article regarding the incidence of mortality associated with anesthesia administered to dogs and cats. In doing so, the court went outside the record in order to arrive at its conclusions and impermissibly assumed the role of an expert for plaintiff. This conduct had the additional effect of depriving defendant of an opportunity to respond to the court's independent findings (see NYC Med. & Neurodiagnostic, P.C. v Republic W. Ins. Co., 8 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2004]).

In view of the foregoing, we find that "substantial justice has not been done between the parties according to the rules and principles of substantive law" (UDCA 1807). Accordingly, the judgment is reversed and the action is dismissed.

Iannacci, J.P., Marano and Tolbert, JJ., concur.
Decision Date: March 27, 2014