New York State Court of Claims

New York State Court of Claims

ANDERSON v. THE STATE OF NEW YORK, #2004-009-15, Claim No. 98730, Motion No. M-67706


Defendant's motion for leave to reargue a prior motion (in which the Court granted summary judgment to claimant on the issue of liability), was denied.

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:
BY: David A. Kalabanka, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
March 2, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion pursuant to CPLR 2221 for leave to reargue a prior motion (Motion No. M-66245) which granted claimant's motion for summary judgment on the issue of liability.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support, with Exhibit 1,2

Memorandum of Law (Defendant) 3

Affidavit in Opposition 4

Memorandum of Law (Claimant) 5

Reply Affirmation 6

In the underlying claim, claimant seeks to recover damages for personal injuries sustained when she suffered a brain hemorrhage during surgery at University Hospital on May 8, 1997. Claimant, suffering from Parkinson's Disease, underwent a surgical procedure known as a pallidotomy in order to ameliorate symptoms of her Parkinsonian tremors. During the procedure, however, there was a malfunction of medical equipment which prevented the surgeon from successfully completing the operation. During the procedure, claimant suffered an intercerebral hemorrhage, rendering her hemiplegic.

By a decision and order dated September 30, 2003, this Court granted claimant's summary judgment motion as to liability. In this decision and order, the Court found that the evidence submitted on such motion established that the State was responsible for maintaining the medical equipment ( a micropositioner) and that it had failed in this duty. The Court found that an amount of air had not been purged from the system, and a filler port screw had not been tightened properly, so that hydraulic fluid leaked during the claimant's surgical procedure. The Court further found that this loss of fluid caused the micropositioner to malfunction, by providing false readings to the surgeon. Finally, the Court found that the cerebral hemorrhage suffered by claimant occurred at a point during the procedure when the malfunction of the micropositioner was most pronounced.

Defendant now seeks leave to reargue this decision and order, contending that the Court misapprehended the law, that it failed to identify certain material issues of fact, and that it resolved certain material issues of fact in favor of claimant.

A motion to reargue is governed by CPLR 2221(d), which provides:

(d) A motion for leave to reargue:

(1) shall be identified specifically as such;

(2) shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and

(3) shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals.

A motion for reargument, addressed to the discretion of the Court, is designed to afford a party an opportunity to establish that the Court overlooked or misapprehended the relevant facts or misapplied the controlling principle of law (Schneider v Solowey, 141 AD2d 813; Foley v Roche, 68 AD2d 558). Its purpose is not to serve as a vehicle to permit an unsuccessful party to argue once again the very questions previously decided (Pahl Equip. Corp. v Kassis, 182 AD2d 22; Fosdick v Town of Hempstead, 126 NY 651).

Defendant argues that liability in this claim should be determined under principles applicable to medical malpractice actions, which require testimony and proof from a medical expert as to the appropriate standard of care, whether a deviation from such established standard of care occurred, and whether such deviation, if any, was the proximate cause of claimant's injuries. Defendant contends that claimant did not produce any such expert testimony to establish the appropriate standard of care under the circumstances of this claim, or that the defendant deviated from established standards of care in this matter, and provided no expert testimony to establish that claimant's injuries were proximately caused by the allegedly malfunctioning micropositioner, and not as a result from the normal risks of surgery. Defendant also contends that there was no expert testimony on which the Court could base its determination that improper maintenance of the micropositioner caused its malfunction during claimant's surgery.

In its decision and order granting summary judgment to claimant, and based upon the evidence submitted therein, this Court found that it was the responsibility of the State to maintain the micropositioner in proper working condition and that the State had failed to properly maintain, service and inspect such equipment which was used during claimant's surgery. Based upon uncontradicted evidence submitted with the motion, the Court also found that this equipment malfunctioned during the surgery as a result of these failures. The Court reached such findings based upon principles of negligence, and did not find any deviation from acceptable medical standards of care by Dr. Holsapple, the surgeon, during this procedure.

The uncontroverted evidence, as established by the deposition testimony of Dr. Holsapple, as well as operative notes and records, established that during claimant's procedure, the micropositioner contained air in its hydraulic lines, and also leaked fluid from the filler port screw. Based upon the deposition testimony submitted in connection with the motion, an improper fluid level would cause the equipment to record incorrect readings as to the position of the electrode being inserted into the brain. The undisputed evidence also established that these incorrect readings were recorded during passes six through eight, after which the surgery was terminated. According to the deposition testimony of Dr. Holsapple, during the initial five passes with the micropositioner, claimant was alert and responsive, but then she failed to respond during passes six through eight, at a time when the micropositioner was not operating properly. Dr. Holsapple concluded, in his expert medical opinion, that the hemorrhage therefore occurred during passes six through eight, and he also determined that the hemorrhage occurred at a site where the electrode had been introduced into the brain.

Based on this uncontradicted testimony and evidence, the Court therefore found, to a reasonable degree of medical certainty, proximate cause between the failure of the medical equipment and the injuries suffered by claimant.

The Court has reviewed this decision and order, and the papers submitted both in support and in opposition to that original motion, as well as the contentions raised by defendant in this motion. After a careful review of all such papers, the Court finds that it correctly applied applicable principles of law in determining that the State was negligent in its maintenance and inspection of the medical equipment involved in the surgery, and that no material issues of fact were raised on the issue of negligence.

Furthermore, in this application, the State has offered no new evidence to support its contentions that the hemorrhage suffered by claimant could have been unrelated to the malfunctioning equipment, as a normal risk of surgery. Based on the expert testimony submitted by claimant in its motion for summary judgment (consisting of the deposition testimony of Dr. Holsapple, a board certified neurosurgeon), the Court found that claimant had established proximate causation between the malfunctioning equipment and the hemorrhage suffered by her, and that the hemorrhage, in this instance, did not result from a normal risk of surgery.

In summary, after a careful review and consideration of defense counsel's supporting affirmation and her memorandum of law, it appears that this Court neither misapplied existing principles of law nor misapprehended the facts presented by claimant on her earlier motion for summary judgment. Accordingly, it is

ORDERED, that Motion No. M-67706 is hereby DENIED.

March 2, 2004
Syracuse, New York

Judge of the Court of Claims