FUNARO v. THE STATE OF NEW YORK, #2001-028-539, Claim No. 92739, Motion No.
JACKSON FUNARO, an infant by his mother and natural guardian, PATRICIA FUNARO
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
RICHARD E. SISE
LEVINE & GROSSMANBY: Mary-Rita Wallace, Esq.
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Toni E. Logue, Esq. Assistant Attorney General
June 22, 2001
See also (multicaptioned
: 1) Notice of Motion filed December 20, 2000 and
Affirmation of AAG Toni E. Logue, with annexed Exhibits A-F.
2) Affirmation in Opposition of Mary-Rita Wallace filed January 16,
2001, with annexed Exhibits A-D.
3) Reply Affirmation of AAG Toni E. Logue filed February 6, 2001, with
4) Defendant's Memorandum of Law.
: Claim and Answer.
This claim is based on injuries allegedly sustained by the infant claimant
flowing from surgery performed by a Dr. Afif Iliya on November 28, 1990 at Stony
Brook University Hospital (SBUH). The Defendant has moved for summary judgment
"on the grounds that Claimant has failed to establish any independent act of
negligence on behalf of Dr. Miyasaka, or any other SBUH employee, regarding
performing the November 28, 1990 surgery" (Logue Affirmation, ¶ 2). The
Claimant has opposed the motion on a procedural
and by maintaining a question of fact
exists as to Dr. Iliya's employment status.
The following recitation of facts is based upon the Court's review of the
papers submitted in connection with the instant motion. Jackson Funaro was born
on September 2, 1990. In November 1990 the infant's pediatrician referred the
child to Dr. Afif Iliya (Dr. Iliya) for an evaluation of craniosynostosis of the
left Lambdoid suture. On November 14, Dr. Iliya, a neurosurgeon, examined the
infant and confirmed the diagnosis. The infant was admitted to SBUH on November
27, 1990, and the following day underwent a surgical procedure known as a
craniectomy. Dr. Iliya was the primary surgeon and a Dr. Tyson was the
assistant surgeon. Dr. Kenji Miyasaka, a surgical resident, scrubbed in to
observe the surgery. On June 6, 1991, Dr. Iliya performed a second craniectomy
on the infant.
The rule governing summary judgment is well established: "The proponent of a
summary judgment motion must make a prima facie showing of entitlement to
judgment as a matter of law, tendering sufficient evidence to eliminate any
material issues of fact from the case" (Winegrad v New York Univ. Med.
Ctr., 64 NY2d 851, 853), and such showing must be made
"by producing evidentiary proof in admissible form" (Zuckerman v City of New
York, 49 NY2d 557, 562). "[R]egardless of the sufficiency of the opposing
papers", in the absence of admissible evidence sufficient to preclude any
material issue of fact, summary judgment is unavailable (Ayotte v
Gervasio, 81 NY2d 1062, 1063, quoting Alvarez v Prospect Hosp., 68
NY2d 320, 324;.
Busanic v the State of New York
, [Ct Cl, Read, J.], Claim No. 99300, Motion Nos. M-62563, CM-62757,
#2001-001-015, March 26, 2001).
judgment is a drastic remedy which deprives a party of its day in court and
should not be granted where there is any doubt as to the existence of a
material issue of fact (Moskowitz v Garlock
, 23 AD2d 943; Epstein v
, 99 AD2d 713). The Court's function is to determine if an issue
doing so, the Court must examine the proof in a light most favorable to the
party opposing the motion (Barker v Kallash, 63 NY2d 19, 23),
At the outset, this Court is precluded from entertaining any dismissal based
upon the necessity of the operation or as to any other allegations of medical
negligence as no expert medical evidence was submitted in support of the motion
for summary judgment. Rather, Defendant has focused on the status of two
actors, Dr. Miyasaka and Dr. Iliya, one as a mere observer and one as
independent contractor, as warranting summary judgment in its
A doctor who is an employee of the State of New York may be sued personally in
Supreme Court and the State "could be held secondarily liable for the tortious
acts [of such doctor] under respondeat superior" (Morell v.
Balasubramanian, 70 NY2d 297, 301). However, where the doctor who commits
the negligence upon a Claimant is an independent contractor, there is no
negligence established upon the part of the State (Rivers v State of New
York, 159 AD2d 788, appeal denied 76 NY2d 701).
The defendant has come forward with evidence, the deposition testimony of Dr.
Iliya, that Dr. Miyasaka was merely present in the operating room to observe the
procedure. (Logue Affirmation, ¶ 8 , Exhibit E) and that Dr.
Miyasaka did not participate in the surgical process. This, the Court finds is
sufficient to establish a prima facie showing that the Defendant is entitled to
summary judgment as to allegations of negligence by Dr. Miyasaka. The claimant,
while in its opposition did not concede the issue (see, Wallace
Affirmation, ¶ 12, 18), has failed to point to any act which can be
construed as an act of negligence by Dr. Miyasaka (see, Kleinert v.
Turning to Dr. Iliya, the Court agrees that Defendant's moving papers on their
face are insufficient to establish entitlement to summary judgment (see,
footnote 3, supra). It appears to the Court from Defendant's attorney's
affirmation, that Defendant had assumed that Dr. Iliya was not a State employee
and proceeded for purposes of the instant application, at its peril.
(see, Soltis v State of New York, 172 AD2d, 919; Lee v State of
New York, [Ct Cl, Corbett, J.] Claim No. 96788, Motion No. M-62106, UID
#2000-005-539, August 23, 2000, [issue of status as independent contractor or
state employee is a question of fact]; see also, Frontier Insurance Company
[Angtuaco] v State of New York, 146 Misc 2d 237, 247 aff'd 172 AD2d
13, 15 [rejecting State's argument that charging a fee rendered services private
and therefore outside of scope of State employment]). In Defendant's reply
papers, counsel argues that Claimant now focuses on Dr. Iliya to prevail against
the State. Assuming Claimant's lack of pursuit of a particular cause of action
or theory of negligence as to Dr. Iliya – an assumption belied by both the
Claim and the Verified Bill of Particulars and its supplement – this does
not relieve the defendant from setting forth sufficient evidence which would
demonstrate its entitlement to a favorable summary judgment decision.
The question of whether a doctor is a state employee for purposes of imputing
negligence to the State is more sophisticated than traditional independent
contractor/employee analysis. In Frontier Insurance Company [Angtuaco] v
State of New York, 146 Misc 2d 237, aff'd 172 AD2d 13, supra, the
Court examined the unique circumstances and interplay between faculty members,
their institutions or departments and private practice patients to gain an
understanding of whether a physician employed as a professor of medicine was
entitled to the benefits of Public Officers Law § 17. There, the Court
explained the critical inquiry was not payment, but whether the act for which
the employee was sued was one which was performed in the scope of her State
employment (Frontier, supra, 146 Misc 2d at 248; see also
Champagnie v State of New York, 224 AD2d 476, 477 [distinguishing the
situation of a doctor who was "more than a mere attending physician with
If the Court, assuming arguendo, were to find that Defendant's
application addressed Dr. Iliya's relationship to the Defendant, the Court would
find that a material issue of fact exists regarding Dr. Iliya's status as an
employee of the State. The Defendant's argument is that Dr. Iliya was engaged
in the private practice of medicine during the time of the infant claimant's
course of treatment. The billing records from New York Spine and Brain Surgery,
P.C.(Logue Affirmation, Exhibit F), which purport to show that the
infant's care was provided by Dr. Iliya as a private patient were neither in
admissible form nor idenitified by Dr. Iliya who testified
Q: Doctor, I ask you to take a look at [billing records]. Have you
seen a form like this before?
A: I don't believe I have.
, Exhibit C). It was clear that he was, at all
times relevant herein, employed by the Defendant at
and that he received additional income
from a private practice. Whether the private practice is the
or New York Spine and Brain Surgery, P.C.
or whether those entities are one and the same entity was not made clear
, Ann Mary J. v City of New York, Health and Hospitals Corp.
204 AD2d 690, 691-692 [ hospital denied summary judgment when it did not submit
the affidavit of an individual competent to officially document the employment
status or the nature of professional relationship with the hospital]).
Moreover, Dr. Iliya's deposition testimony did little to shed any light on the
interplay between his State employment and private practice as it related to the
treatment of the infant claimant.
Q: Doctor, do you know the term New York Spine and
Brain Surgery, PC?
A: The department changed its name from Neurological Surgery
to New York Spine and Brain Surgery.
(Logue Affirmation, Exhibit C). Dr. Iliya described his duties as a
"member of the department of neurosurgery" as doing "clinical" and "academic"
neurosurgery and that part of his teaching duties included "teaching them
[residents] in the operating room". According to Dr. Iliya, he would see
patients in their hospital room, in the Outpatient Care Pavilion located on the
fifth floor of the hospital and in his office in the SUNY Health Science Center.
Beyond the pediatric referral from Dr. Kaplan to Dr. Iliya and the purported
billing statements, the record is scarce with regard to relationships between
claimant and Dr. Iliya, Dr. Iliya and SBUH and Dr. Iliya and his private
On this record, the trail from patient referral to admitting privileges at SBUH
to New York Spine and Brain Surgery, PC and Dr. Iliya's employment by Defendant
is neither sufficiently connected nor explained to permit the Court to conclude,
as a matter of law, that Dr. Iliya acted solely as a private practitioner
(see, Frontier Insurance Company [Angtuaco] v State of New York,
146 Misc 2d 237, 249 aff'd 172 AD2d 13 [statements in affidavits and
transcripts are of a general nature...to establish these critical facts in the
context of the case before us, further proceedings are necessary]). Rather,
these relationships and the presence of the resident in the operating room,
Id., raise a material issue of fact as to whether Dr. Iliya was acting as a
state employee or an independent contractor.
Based upon the foregoing reasoning the Defendant's motion for summary judgment
granted in part and denied in part. That is, all causes of actions alleging
negligence by the State as a result of the actions or inactions of Dr. Miyasaka
are dismissed. The balance of Claimant's causes of action survive. The Clerk of
the Court is directed to enter judgment accordingly.
June 22, 2001
HON. RICHARD E. SISE
Judge of the Court of Claims
. Although Claimant maintains there is a
pending motion on the same issues raised in the instant motion, the Court has
found no record of a filed motion (see
, Rules of the Court of Claims
§ 206.8, 206.9).
. Decisions of the Court of Claims are
available in a searchable database on the internet, free of charge.
Access may be obtained through the Court of Claims website at
. Claimant's opposition papers correctly
point out that Defendant's moving papers did not directly address Dr.Iliya, but
rather, as limited by its memorandum, focused on Dr. Miyasaka, and only in Reply
is Dr. Iliya's role squarely addressed.
. Although Dr. Iliya testified that he was
employed as an assistant professor of neurological surgery at Stony Brook and
received a biweekly state check (Logue Reply Affirmation, Exhibit D), Defendant
asserted Dr. Iliya testified he was not an employee of SUNY. Logue Reply
Affirmation, ¶ 9). Dr. Iliya's contradictory statements, on this record,
are sufficient to raise a question of fact.
. Although reference to "CPNP" is made in
Dr. Iliya's deposition testimony, the court believes this to be an error and the
reference is to CPMP - clinical practice management plan. Regardless, the
entity, and its relation to these proceedings is unexplained.
. The cases relied upon by Defendant support
the denial of summary judgment in that "all relevant circumstances" have not
been explored or established (see
, Felice v St. Agnes Hospital, 65
AD2d 388, 397
[today the hospital takes an increasingly active part in
supplying and regulating the purely medical care the patient receives]).