New York State Court of Claims

New York State Court of Claims

WALKER v. THE STATE OF NEW YORK, #2000-009-432, Claim No. 90072, Motion No. M-61940


Defendant's motion for summary judgment dismissing the claim was denied.

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):

Nicholas V. Midey, Jr.
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:
September 26, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion seeking an order of summary judgment and dismissal of the claim.

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

Memorandum of Law (In Support) 3

Affidavit in Opposition, with Exhibit 4

Reply Affirmation 5

This claim, sounding in medical malpractice, seeks damages resulting from certain surgical procedures performed upon claimant at the SUNY Health Science Center in Syracuse.

Claimant alleges that on January 15, 1992, she underwent surgery at the Health Science Center after complaining of pain in her right side. She alleges that her right ovary and fallopian tube were to be removed in this surgery, which was performed by Dr. Shawky Badawy. Following this surgery, claimant continued to experience right-sided pain, and continued to be treated by Dr. Badawy. Eventually, claimant underwent a second surgery on May 17, 1993, in which her right ovary was in fact removed.

The basis of this claim, therefore, is that claimant 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. She seeks damages for the pain which she continued to experience following the initial surgery, and for the pain and suffering caused by the second surgery.

For purposes of this motion, it is important to note that this Court had previously dismissed this claim without prejudice, by order dated October 13, 1999, due to non-compliance with several scheduling orders. The order provided that claimant could seek reinstatement of the claim within 60 days from the date of said order of dismissal, but only if the motion contained "such supporting documentation and/or affidavits to establish a meritorious basis, both legal and factual, for this claim."

By an order dated April 25, 2000, this Court reinstated this claim. Claimant's application, however, did not contain any affidavit from a medical expert. Claimant's counsel, in his supporting affirmation, stated that claimant would proceed solely under the doctrine of res ipsa loquitur, and informed the Court that claimant did not intend to call any expert witnesses at trial in support of her medical malpractice claim.

Defendant now contends that the doctrine of res ipsa loquitur is inapplicable in this claim, and that in order to establish a prima facie case, claimant must provide expert testimony at trial. Since claimant does not intend to call any experts on the issue of liability, defendant contends that summary judgment against claimant should be granted and this claim should be dismissed.

Summary judgment is the procedural equivalent of a trial (Andre v Pomeroy, 35 NY2d 361) and should be granted only when it has been established that there is no triable issue (Moskowitz v Garlock, 23 AD2d 943). The role of the Court, therefore, on a motion for summary judgment is not to resolve material issues of fact, but instead is to determine whether any such issues exist (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). If such issues exist, the motion for summary judgment must be denied. Only the existence of a material issue of fact, however, and not one based on conclusory or irrelevant allegations, will be sufficient to defeat a motion for summary judgment (Rotuba Extruders v Ceppos, 46 NY2d 223).

Defendant contends that in order to establish a prima facie case of medical malpractice, claimant must establish through expert testimony that a standard of care exists, that a deviation from the standard of care occurred, and that the deviation caused claimant's injury. Since claimant will not be calling any expert witnesses at trial, defendant argues that she will therefore be unable to establish a prima facie case of medical malpractice.

In most situations, expert testimony is in fact required in order to establish a prima facie case (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 been applied by New York Courts in establishing liability against a hospital (Fogal v Genesee Hospital, 41 AD2d 468; Kambat v St. Francis Hospital, 89 NY2d 489). The doctrine of res ipsa loquitur, however, is limited to "those cases where the alleged negligent act may be readily determined by the trier of the facts based on common knowledge" (Coursen v New York Hospital - Cornell Medical Center, 114 AD2d 254).

In order to invoke the doctrine of res ipsa loquitur, a claimant must satisfy three separate conditions. The claimant must show that (1) the event was of a kind that ordinarily does not happen in the absence of someone's negligence, (2) the event must be caused by an agent or instrumentality within the exclusive control of the defendant, and (3) it must not have been due to any voluntary act or contribution on the part of the claimant. (Kambat v St. Francis Hospital, supra; Dermatossian v New York City Transit Authority, 67 NY2d 219).

In this case, it is clear that the last two elements of the doctrine have been satisfied. Claimant was clearly under the control of the hospital charged with negligence, and there has been no indication that she in any way contributed to her alleged injuries. It remains to be seen, however, as to whether claimant will be able to establish that the event causing her injuries or pain and suffering would not normally occur in the absence of someone's negligence. Defendant contends that without expert testimony, claimant will be unable to prove this element necessary to succeed under the doctrine of res ipsa loquitur. However, claimant, proceeding solely on this doctrine, should be given the opportunity to present her case at trial.

As this Court stated in its prior order reinstating this claim, neither party should take this decision as any indication that the claimant will succeed at trial. Without expert medical testimony, claimant will have a most difficult task. However, without having heard testimony supporting her theory of res ipsa loquitur, this Court cannot deprive claimant of her day in court.

Accordingly, it is

ORDERED, that Motion No. M-61940 is hereby DENIED; and it is further

ORDERED, that a trial limited to the issue of liability will be scheduled as soon as reasonably practicable.

September 26, 2000
Syracuse, New York

Judge of the Court of Claims