New York State Court of Claims

New York State Court of Claims

WALKER v. THE STATE OF NEW YORK, #2000-009-400, Claim No. 90072, Motion No. M-60891


Motion to re-instate the claim following dismissal for failure to comply with prior scheduling orders. Motion granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
BY: Joseph S. Cote, III, Esq., Of Counsel.
Defendant's attorney:
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney General, Of Counsel.
Third-party defendant's attorney:

Signature date:
April 25, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking to restore her claim to the calendar.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2

Affirmation in Opposition, with Exhibits 3

By her claim, claimant alleges that in January, 1992, she underwent surgery at the State University of New York, Health Science Center (University Hospital), after complaining of pain in her right side. She alleges that the surgery was for removal of her fallopian tube and ovary, and that the surgery was performed by Dr. Shawky Badawy. Following the surgery, claimant continued to experience right-sided pain, and continued to see Dr. Badawy. Eventually, after continuation of the right-sided pain, claimant underwent surgery on May 17, 1993, in which her right ovary was removed. The basis of this claim, therefore, is that claimant experienced continued pain following her initial surgery, and was required to undergo a second operation for removal of her right ovary, which she alleges was to have been removed during the initial surgery.

This claim has had a long and tortured history in this Court. Without providing all of the details, this claim was dismissed, without prejudice, by Order of this Court dated October 13, 1999, after non-compliance with several scheduling orders which had established deadlines for discovery and service and filing of a note of issue.

In its Order, the Court noted that claimant could seek to reinstate the claim by a motion served and filed within 60 days from the date of the Order of dismissal, provided that the motion "contain such supporting documentation and/or affidavits to establish a meritorious basis, both legal and factual, for this claim."

In this motion, claimant's counsel did not provide supporting documentation or affidavits in support of claimant's application to reinstate the claim. Claimant's counsel, however, did affirm that claimant intended to proceed under the doctrine of res ipsa loquitur, and that claimant did not intend to call any expert witnesses at trial in support of her medical malpractice claim. In response, defendant contends that the doctrine of res ipsa loquitur is inapplicable in the instant medical malpractice claim, and that claimant must provide expert testimony in order to establish a prima facie case. Therefore, defendant contends, the claim should not be reinstated.

Defendant is correct in asserting that a claimant must generally provide expert testimony in order to establish a prima facie case of medical malpractice (Wells v State of New York, 228 AD2d 581; Armstrong v State of New York, 214 AD2d 812). The doctrine of res ipsa loquitur, however, has previously been applied in medical malpractice cases where the person causing the injury is under the control of the agency charged with negligence, and surrounding circumstances indicate that the accident, in all likelihood, would not have occurred if reasonable diligence was exercised (NY Jur 2d, Malpractice, § 307). Whether claimant will be able to succeed on her claim, without any expert medical evidence and proceeding solely on the doctrine of res ipsa loquitur, is a question best answered after she has had an opportunity to present her case at trial. The Court, therefore, does agree to reinstate this claim.

The Court is well aware that prior scheduling orders and directives from the Court have been ignored, and that defendant has fully cooperated in attempting to bring this matter to conclusion. The Court candidly admits, however, that it has considered the past history of claimant's difficulties with her prior attorney, as well as the persistence of claimant in pursuing her claim, in its decision to reinstate this claim. The decision to reinstate this claim, therefore, should not be taken by either party as any indication that the claimant will succeed at trial. Without expert medical proof, claimant will have a most difficult time in establishing liability. However, the Court strongly believes that claimant should be given the opportunity to prove her claim at trial.

Since claimant has advised the Court that she is proceeding solely on the doctrine of res ipsa loquitur, it appears to the Court that all pre-trial discovery is now complete, and that this matter is trial ready.

Therefore, it is

ORDERED, that Motion No. M-60891 is hereby GRANTED; and it is further

ORDERED, that Claim No. 90072 is hereby reinstated, and the Clerk of the Court is directed to restore this claim to my calendar of untried claims; and it is further

ORDERED, that claimant must serve and file her note of issue and certificate of readiness by June 30, 2000, unless extended by an Order of this Court prior to June 30, 2000, and failure to timely serve and file the note of issue and certificate of readiness shall result in an automatic dismissal of the claim, with prejudice, on the Court's own motion without further notice to the parties.

April 25, 2000
Syracuse, New York

Judge of the Court of Claims