New York State Court of Claims

New York State Court of Claims

FISCHER v. THE STATE OF NEW YORK, #2002-016-067, Claim No. 103496, Motion No. M-63805


Case Information

CAROLINE FISCHER, Individually and as Administratrix of the Estate of THOMAS M. SAMMARCO, Deceased, and VIVIAN SAMMARCO, Individually The caption has been amended sua sponte to reflect that the only proper defendant in this Court is the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect that the only proper defendant in this Court is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Gottlieb & NitkewiczBy: Edward J. Nitkewicz, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Katharine S. Brooks, AAG
Third-party defendant's attorney:

Signature date:
June 28, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)


By a plea agreement executed September 6, 2000 with the Office of the United States Attorney for the Eastern District of New York, Dr. Michael Swango admitted that, at the Veterans Affairs Medical Center at Northport, New York, he "intentionally murdered Thomas Sammarco ... by administering an intravenous injection of a toxic substance that caused respiratory and neurological paralysis on or about October 4, 1993." (Cl affirm in opp, exh E, pp 3-4).

Swango, on July 1, 1993, had begun a four-year residency in psychiatry at the State University's Health Sciences Center at Stony Brook. Swango was assigned by Stony Brook to work in the residency program it ran at the Veterans Affairs hospital in Northport, which is also located in Suffolk County. The assignment at the VA hospital was in internal medicine, part of the standard rotation for Swango's residency.

The claim on behalf of Sammarco was served on the defendant December 1, 2000; the notice of intention to file a claim had been served on it October 3, 2000. Defendant here moves to dismiss the claim as being barred by the statute of limitations. Defendant points to the claim's list of injuries Sammarco suffered as pre-death objective manifestations of the damage or symptoms caused by exposure to the drug Swango injected him with: increased blood pressure, increased heart rate, loss of motor control, paralysis and loss of muscle function. (Def aff, exh B, ¶6; def brief, pp 3-4).

In the September 6, 2000 agreement, Swango additionally pled guilty to the murders in 1993 of George Siano and Aldo Serini, who were also patients at the VA hospital in Northport. Representatives of Siano and Serini filed suit in the year 2000 in this Court, and the defendant State of New York in each case moved to dismiss on statute of limitations grounds.

The three cases are connected, and I have decided them together. For our purposes, the pertinent facts and circumstances are the same in this case as in Siano's (M-63804), except as otherwise set forth herein. As the above-quoted plea agreement indicates, Sammarco died October 4, 1993, more than two months after Siano's death. Sammarco, was injected by Swango with a different drug, the muscle relaxant succinyl choline.

Caroline Fischer, Sammarco's daughter and administratrix, swore in her affidavit that at the time of her father's death:
We understood that my father died while undergoing testing in connection with heart bypass surgery. We were told that his heart simply stopped...We were not aware that he had been poisoned by one of his own doctors...We were not aware that as a result of the poisoning, my father suffered from increased blood pressure, increased heart rate, loss of motor control, paralysis or loss of muscle function...On July 5, 2000, the Federal authorities advised me and my family for the first time that the medical tests performed on my father's exhumed body revealed that he had been poisoned and had suffered the effects of succinyl monocholine and succinyl choline poisoning. Never before had anyone provided us with any information in this regard. (Fischer aff, pp 4-6).
The arguments of the parties in this matter are the same as were made in the Siano case; their submissions virtually identical. Any differences in the facts here and circumstances from those of the Siano matter are not material and do not affect my conclusion.

In view of the foregoing, having considered the submissions of the parties,[1] IT IS ORDERED that defendant's motion (M-63805) be denied.

June 28, 2002
New York, New York

Judge of the Court of Claims

[1] On behalf of the defendant: Notice of Motion and Affirmation in Support containing exhibits A through E; Memorandum of Law; and Reply Affirmation. On behalf of the claimant: Affirmation in Opposition containing exhibits A through Q, and Affidavit by Caroline Fischer; Memorandum of Law.