New York State Court of Claims

New York State Court of Claims

PASSALACQUA v. THE STATE OF NEW YORK, #2001-028-569, Claim No. 96084, Motion No. M-62997


Defendant established entitlement to summary judgment based upon expert's affidavit. Claimant failed to submit any competent medical evidence to raise issue of fact. Claim dismissed.

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):

Claimant's attorney:
Defendant's attorney:
BY: Toni E. Logue, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 30, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on defendant's motion pursuant to CPLR §3212:

  1. Notice of Motion filed January 23, 2001, and affirmation of Toni E. Logue (Logue Affirmation) and affidavit of Jay L. Bosworth, M.D. (Bosworth Affidavit) with annexed Exhibits A-I.
  1. Letter in Opposition of Anthony Passalacqua (Passalacqua Letter) received August 21, 2001.

Filed Papers: Claim; Verified Answer.

This claim was filed on April 25, 1997 and issue was joined. Claimant, Anthony Passalacqua[1] specified, claimant shall refer to Anthony Passalacqua. alleges that the defendant negligently administered radiation therapy and failed to obtain his informed consent to the radiation therapy (Claim ¶¶ 5 and12). A review of Claimant's Bill of Particulars (Bosworth Affidavit, Exhibit C) discloses that Claimant asserts he has been rendered blind in both eyes.

The following recitation of facts is based upon the Court's review of the papers submitted in connection with the instant motion. In or about April 1994, Claimant developed symptoms which led to a CT scan of the head and nasal cavity being performed in August 1994. The scan revealed a large mass in the nasal cavity and a biopsy was performed in September 1994. Regrettably, the mass was an undifferentiated carcinoma. Following extensive surgery at Mt. Sinai Hospital, in October 1994, Claimant was referred to Dr. Allen Meek, a radiation oncologist at Stony Brook University Hospital (SBUH), a hospital facility operated by the defendant. Dr. Meek developed a radiation therapy treatment program for Claimant that was administered from November 8, 1994 through January 5, 1995. Prior to initiating treatment, Claimant executed a consent form (Exhibit G) which included a specific reference to decreased vision as a long term risk and or consequence. Four employees of the defendant are identified in the medical records as being the radiation technicians who treated claimant from time to time. Dr. Meek continued to follow Claimant through October 1995, when Claimant made his first complaint of decreased vision. Dr. Meek ordered additional tests on Claimant, including a CT Scan and an MRI. As a result of the MRI findings, Claimant was referred to Dr. Patrick Sibony, a neuro-ophthalmologist at SBUH. Dr. Sibony suggested, and Claimant underwent, hyperbaric oxygen treatment in an attempt to control the worsening vision in his left eye. Thereafter, in early 1996 Claimant was seen by another ophthalmologist, Dr. Winterkorn while Claimant continued to see Dr. Meek through June 1996. According to Dr. Winterkorn's report, Claimant was without light perception in the left eye and the vision in the right eye had stabilized, including central vision to read.

Summary judgment is the procedural equivalent of a trial (Andre v Pomeroy, 35 NY2d 361). In order to grant summary judgment, a Court must find that there are no material triable issues of fact. "To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form" (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067). 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).

Once the movant establishes his or her prima facie entitlement to summary judgment, the burden shifts to the opposing party to come forward with admissible proof establishing the existence of a material issue of fact requiring a trial (Leek v McGlone, 162 AD2d 504). 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). Should the moving party fail to make a prima facie showing of its entitlement to judgment as a matter of law, the motion will be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., 68 NY2d 320).

Expert medical opinion is generally required in order to establish a prima facie case of medical malpractice (see, Wells v State of New York, 228 AD2d 581; Armstrong v State of New York, 214 AD2d 812) and the Court must accept Claimant's evidence as true and grant him every favorable inference. (Hartford Ins. Co. v General Acc. Group Ins. Co., 177 AD2d 1046, 1047).

Initially, the Court agrees with Defendant's assertion that Supreme Court's grant of summary judgment to the individual doctors in a suit brought against them by Claimant arising from the same set of facts as the instant Claim (see, Exhibit E, Judgment and Decision; Passalacqua v Meek, et. al, S. Ct., Suffolk County, Index No. 96-17003 [June 5, 200]) collaterally estops claimant from relitigating the appropriateness of the treatment plan or the directions of the doctors related thereto (see, Ryan v New York Telephone Co., 62 NY2d 494; Pratt v State of New York, 181 Misc. 2d 488, 490). The Supreme Court's decision necessarily precludes vicarious liability on the part of SBUH for the actions of Dr. Meek which have been found not to constitute malpractice (see, Hill v St. Clare's Hosp., 67 NY2d 72, 79; Fiorentino v Wenger, 19 NY2d 407, 414).

In the Court's view, Defendant has established its entitlement to summary judgment. The defendant has proffered the expert medical affidavit of Dr. Bosworth, a licensed physician specializing in the field of radiation oncology. Dr. Bosworth is also board certified in Therapeutic Radiology by the American Board of Radiology (Bosworth Affidavit, ¶ 1). Dr. Bosworth[2] identified the medical records (Exhibits F, H & I) and other documents he reviewed in reaching his opinions. He opined that Dr. Meek conformed to good and accepted practice by having Claimant sign a consent form which included specific references to the potential risks of radiation therapy and the lack of reasonable alternatives (Bosworth Affidavit, ¶ 16). Dr. Bosworth further opined that at all times the radiation technicians properly administered radiation therapy to the Claimant and that during the administration of the therapy appropriate modifications were made to the treatment plan and followed by the technicians. He summarized his opinion by stating that at all times the employees of SBUH treated claimant in accordance with good and accepted practices and that the complications experienced by Claimant are a well known and accepted risk of radiation therapy (Bosworth Affidavit, ¶ 19). The foregoing constitutes the requisite expert medical opinion evidence to establish a lack of merit to this claim (see, Conti v Albany Medical Center Hosp., 159 AD2d 772; Lynn G. v Hugo, 96 NY2d 306, [informed consent]).

Claimant's letter[3], which for purposes of this motion the court will accept as an affidavit, is insufficient as a matter of law to raise a triable issue of material fact. While claimant's observations have a certain facial appeal, claimant, who by trade is a security officer and builder (Exhibit C), is no more competent to render an opinion on issues regarding radiation therapy, treatment and equipment, than the Court (see, Duffen v State of New York, 245 AD2d 653). Here, the claimant's failure to present any expert medical proof concerning the injuries he sustained, much less any competent proof that there was a deviation from accepted medical standards (see, Alvarez v Prospect Hosp., 68 NY2d 320), requires the granting of the motion.

The motion for summary judgment is granted in its entirety and Claim No. 96084 is dismissed. The Clerk is directed to enter judgment accordingly.

October 30, 2001
Albany, New York

Judge of the Court of Claims

[1] The claim of Janet Passalacqua, claimant's wife, is derivative. Unless otherwise

[2] Dr. Bosworth submitted a similar affidavit (see, Exhibit D) in support of Dr. Meek's successful application for summary judgment in the Supreme Court action.
[3] Claimant was afforded three adjournments to retain counsel and has been unable to do so.