Upon the foregoing papers, this motion is granted to the extent noted.
In this motion, the Defendant seeks dismissal of the claim herein to the extent
that it names defendants other than the State of New York, and makes no
allegations that could be attributed to the State of New York itself.
First, the Notice of Intention herein names only the State of New York as
Defendant, while the claim itself names the State, Hans Walker (Superintendent),
John B. Ryan, M.D. and Auburn Memorial Hospital as Defendants. The underlying
allegations here relate to a medical problem that Claimant had while an inmate
at Auburn Correctional Facility (Auburn), which led to the removal of his
appendix at Auburn Memorial Hospital and his return to Auburn on or about
January 29, 2001. Claimant alleges that the symptoms, pain, etc., that he
complained of prior to the removal of his appendix, still exist.
Defendant seeks dismissal on the ground that Hans Walker (Superintendent), John
B. Ryan, M.D. and Auburn Memorial Hospital, are not proper party defendants or
suable in the Court of Claims. Claimant opposes the same on the basis that it
is only Defendant's unsupported allegations that Dr. Ryan and Auburn Memorial
Hospital are not connected to the State of New York, and that it is the
Defendant's burden to prove that no direct relationship exists.
With respect to that part of the motion which seeks dismissal of the claim as
it relates to all named Defendants other than the State of New York, the motion
is granted. First, it matters not for purposes of the claim whether the
individuals and hospital are named as defendants. If there is any such
contractual or other formal relationship between the doctor, the hospital and
the State of New York and such could be proven, the State's liability would
exist regardless of the naming of the other entities as Defendants. Defendant
has cited Rivers v State of New York, 159 AD2d 788 (later, an appeal was
denied by the Court of Appeals, 76 NY2d 701) in support thereof. I, of course,
have no idea whether there is the type of relationship alleged by Claimant, but,
given the State's denial of any such relationship, Claimant might be well
advised to preserve his rights and consider his remedies in Supreme Court as
against Dr. Ryan and/or Auburn Memorial Hospital (cf., Morell v
Balasubramanian, 70 NY2d 297). Thus, as to Auburn Memorial Hospital and Dr.
John Ryan, the motion is granted and that part of the claim is dismissed.
With respect to Superintendent Hans Walker, if there are any allegations with
respect to his actions as an employee of the State of New York, only the State
of New York would be a properly named defendant in this court, and, if so, could
be vicariously liable for his actions. In any event, individually he is an
improper party defendant, and thus, as to Hans Walker individually, the motion
is granted and that part of the claim is dismissed.
Finally, I am left with that part of the motion which seeks dismissal of the
claim against the State of New York, on the basis that it articulates no
allegations of negligence or culpable conduct by the State of New York itself.
It appears for example, solely from the claim, that on January 27, 2001,
Claimant complained, inter alia, about lower abdominal pain, and that he
was taken to the emergency room at an outside hospital where he was examined and
treated by Dr. John B. Ryan, who thereafter removed his appendix. He alleges
that as the time of verification of the claim, on or about April 26, 2001, that
he still has the same pain symptoms as he had prior to the surgery, but that he
no longer reports his illness to the Auburn Correctional Facility medical staff
for "the fear of being misdiagnose[d] again." There are no specific allegations
of negligence or other culpable conduct by the State of New York
The only inferential culpable conduct by the State of New York is totally
reliant upon the formality of the relationship, if any, between Auburn Memorial
Hospital and/or Dr. John B. Ryan, and the State. I note that the Defendant in
its Memorandum of Law, asserts that "the State did not control Dr. Ryan or the
hospital." Such assertion is not made under oath in the affirmation in support,
and while it is raised in the Memorandum of Law signed by the Assistant Attorney
General herein, it is not clear that such assertion is or can be made by someone
with personal knowledge, or was made solely upon information and belief.
Accordingly, I cannot find, at this time, that there is no "formal"
relationship between the State and Dr. Ryan and/or Auburn Memorial Hospital, and
the motion, to that extent, is denied. The denial of this motion is without
prejudice to the Defendant's submission of another motion, with an affidavit on
personal knowledge in support of its contention. If Defendant were so advised,
I would entertain such an application.
The motion is granted to the extent noted, but otherwise denied, without