New York State Court of Claims

New York State Court of Claims

ROSADO v. STATE OF NEW YORK, #2000-018-033, Claim No. 98538, Motion No. M-62050


Synopsis


Claimant made a motion for preference based upon CPLR §3403(a)(5) and in the interests of justice. Motion granted.

Case Information

UID:
2000-018-033
Claimant(s):
VICTOR ROSADO
Claimant short name:
ROSADO
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98538
Motion number(s):
M-62050
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
MLYNARSKI & CAWLEY, P.C.By: Joseph F. Cawley, Esquire
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: LOUIS J. TRIPOLI, ESQUIRE Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 17, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The Court has reviewed and considered the following papers on claimant's application


for a preference pursuant to CPLR §3403:


Notice of Motion.............................................................................................................1


Affidavit of Joseph F. Cawley, Esquire on behalf of the claimant..................................2

Defendant's response was a letter from Assistant Attorney General Louis J. Tripoli, Esquire to the Court stating that the attorney general had "no particular objection to agreeing to a preference..."


Claimant brought a claim for medical malpractice against the defendant, State of New York, for failure to timely diagnose and properly treat a condition of aspergillosis. The Court had set a trial date of July 30, 2001. Claimant now brings a motion to obtain a trial preference.

The original claim alleges that despite awareness of an x-ray study demonstrating the presence of a fungal process in claimant's right lung, defendant failed to timely diagnose and properly treat a condition of aspergillosis, permitting a cavitating fungal lesion to grow therein. Ultimately, the claimant was required to undergo a lobectomy, resulting in the permanent loss of the upper lobe of his right lung with severe and debilitating consequences. Additionally, claimant was diagnosed as being HIV positive in 1990, and is currently undergoing treatment for AIDS. This condition is unrelated to the medical malpractice claim.

The New York CPLR §3403(a) states in relevant part, that "civil cases shall be tried in the order in which notes of issue have been filed, but the following shall be entitled to a preference....5) an action to recover damages for medical, dental or podiatric malpractice."

This motion is based upon a claim for medical malpractice and the interests of justice. Although this motion was not filed along with the Note of Issue, this is a case which warrants a trial preference given CPLR §3403(a)(5) and the claimant's medical status. (Sanfilippo v Carrington's of Melville Inc. 158 Misc 2d 630.) In light of the statute, the potentially fatal condition of the claimant, and the lack of objection from the defendant, trial preference is hereby GRANTED, and a new trial date shall be determined after a telephone conference with counsel.


August 17, 2000
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims