# Cohen v. State of NY

> Appellate Division of the Supreme Court of the State of New York · April 15, 1976 · 51 A.D.2d 494

URL: https://www.frixlaw.com/law-library/cases/9885699

## Case

- **Full name:** Ellen F. Cohen, as Administratrix of the Estate of Alan D. Cohen, Deceased, Respondent, v. State of New York, Appellant
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** April 15, 1976
- **Citations:** 51 A.D.2d 494; 382 N.Y.S.2d 128; 1976 N.Y. App. Div. LEXIS 11110
- **Precedential status:** Published
- **Opinion:** Dissent by Reynolds
- **Judges:** Greenblott and Main
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9885699

## Opinion text

*499 Reynolds, J. (dissenting).
We cannot agree that the State should be liable for the tragic death of claimant’s intestate on the basis of the evidence presented in the instant record. Concededly, the only duty the State owed to the decedent was to exercise reasonable care to protect him from himself (e.g., Hirsh v State of New York, 8 NY2d 125 ). The majority does not find such a lack of care on the basis of negligence on the part of Dr. Sverd, thus implicitly finding his actions to constitute no more than an error in judgment, or in the decision to utilize "milieu therapy” or the "open door policy” as a course of treatment for decedent’s malady. Rather, fault is, in effect, found on the ground that Dr. Bjork did not adequately supervise Dr. Sverd considering that he did not yet possess the requisite skill or training to act in an unsupervised manner. In our opinion the supervision afforded Dr. Sverd by Dr. Bjork was more than adequate.
It is clear that Dr. Bjork thoroughly and continuously reviewed Dr. Sverd’s progress notes and reports, and decedent’s progress and condition were regularly discussed at team meetings attended by Dr. Bjork. The fact that Dr. Bjork, herself, did not conduct a personal evaluation and enter her conclusion based thereon, cannot be said to amount to negligence and in any event was not the proximate cause of the death of claimant’s intestate. Instead, if there be any fault at all, it lies in the judgmental decision of Dr. Sverd and for that the State, as noted, is clearly not liable.
Accordingly, we would reverse the judgment and dismiss the claim (Kardas v State of New York, 24 AD2d 789 ).
Greenblott and Main, JJ., concur with Herlihy, J.; Koreman, P.J., and Reynolds, J., dissent and vote to reverse in an opinion by Reynolds, J.
Judgment modified, on the law and the facts and in the interests of justice, by reducing the damages awarded to claimant from $150,000 to $35,000, together with appropriate interest, and, as so modified, affirmed, with costs. Settle order on notice.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9885699. Public record. Not legal advice.