New York State Court of Claims

New York State Court of Claims

TIRADO v. THE STATE OF NEW YORK, HANS WALKER (SUPERINTENDENT), JOHN B. RYAN, M.D. AND AUBURN MEMORIAL HOSPITAL, #2001-005-525, Claim No. 104201, Motion No. M-63602


Synopsis


Defendant's motion for dismissal of the claim is denied.

Case Information

UID:
2001-005-525
Claimant(s):
VICTOR TIRADO
Claimant short name:
TIRADO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, HANS WALKER (SUPERINTENDENT), JOHN B. RYAN, M.D. AND AUBURN MEMORIAL HOSPITAL
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104201
Motion number(s):
M-63602
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Victor Tirado,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Michael R. O'Neill, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 13, 2001
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

On July 11, 2001, the following papers, numbered 1 to 4, were read on motion by Defendant State of New York for the dismissal of the claim:

1, 2 Notice of Motion, Affirmation and Exhibits Annexed
  1. Opposing Affidavit (Verified Reply)
  2. Filed Papers: Claim
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 whatsoever.

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 prejudice.


August 13, 2001
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims