New York State Court of Claims

New York State Court of Claims

McDONNELL v. THE STATE OF NEW YORK, #2004-028-565, Claim No. 108784, Motion No. M-68042


Case Information

ELIZABETH McDONNELL, Individually and as motherand natural guardian and proposed Administratrix of the Estate of infant DAISHA PANAGOS, Deceased
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:
MANOUSSOS & ASSOCIATES, P.C.BY: Lamont K. Rodgers, Esq.
Defendant's attorney:
BY: Anne C. LeaheyAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 28, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's timely pre-answer motion to dismiss the Claim:

1) Notice of Motion and supporting Affidavit of John Talarico, D.O., M.P.H., with annexed Exhibit 1, (Talarico Affidavit) filed February 17, 2004;

2) Affirmation in Opposition of Anthony Colantonio, M.D., Esq., with annexed Exhibits A-D, (Colantonio Opposition) filed May 3, 2004;

3) Reply Affirmation of Assistant Attorney General Anne C. Leahey, with annexed Exhibits A-B[1], (Leahey Reply) filed June 15, 2004;

4) Sur Reply of Lamont K. Rodgers, Esq., (Rodgers Reply) filed July 6, 2004; and

5) Defendant's Memorandum of Law.

Filed Papers: Verified Claim filed January 16, 2004.

This Claim has its origin in the tragic death of 9 year-old infant Claimant-Decedent, Daisha Panagos, at her home in Port Jefferson, New York, which occurred on November 9, 2003 when the infant fell from her bed, became lodged between the bed and the wall and asphyxiated. The instant Claim alleges the Defendant was negligent when its Department of Health failed to authorize and provide medically necessary equipment - in this case a "hard stockton bed or similar equipment" (Claim ¶ 4) "as required by Public Health Law 2582 et al and the laws of New York" (id.) and seeks damages for wrongful death and conscious pain of the infant and related damages on behalf of the mother, Elizabeth McDonnell.

Defendant moved to dismiss the Claim asserting the Court lacked subject matter jurisdiction and for the failure to state a cause of action. Defendant's application, apparently in reliance upon Claimant's assertion that Public Health Law § 2582 was not complied with, focused on the Physically Handicapped Children's Program (see PHL § 2580 et seq.) and the State's limited role in that program (see generally Talarico Affidavit; Defendant's Memorandum of Law). Claimant's opposition papers assert that Claimant is in possession of a denial letter from Defendant's Department of Health and has annexed a copy to their opposition papers (Colantonio Opposition Exhibit C) and a copy of the infant's New York State Benefit Identification Card (id., Exhibit D) to argue the child was in fact denied by the State program.

In Reply, Defendant asserts Claimant's documentary evidence shows the denial was made under the State's Medicaid program (Leahey Reply ¶ 10) and goes on to argue that the Defendant is immune from suit as the act of reviewing and denying the request for durable medical equipment was a "discretionary" act (id., ¶ 17). In a Sur Reply, Claimant asserts that immunity does not attach as the act was ministerial in nature, involved a proprietary function and there existed a special relationship between defendant and the claimant (Rodgers Reply ¶ 3).

On a motion under CPLR 3211 (subd [a], par 7) the Court is concerned with whether the pleading states a cause of action rather than the ultimate determination of the facts (Stukuls v State of New York, 42 NY2d 272, 275). In determining whether the facts as alleged fit within any cognizable legal theory, the claim is afforded a liberal construction, the facts as alleged are accepted as true, and the Claimant is afforded the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88).

Applying this standard to the instant pleading, the Court finds Claimant has failed to state a cause of action premised upon the Defendant's Physically Handicapped Children's Program (PHCP). The PHCP was established to comply with the mandates of the Public Health Law (Public Health Law, § 2580 et seq), "which reflects the Legislature's implementation of this State's enunciated policy to provide medical service for the treatment and rehabilitation of physically handicapped children" (McGaw v Huntington Hospital, 89 AD2d 38, 41 [internal quotations omitted]). However, within the guidelines of the PHCP a County is obligated to pay for medical services, which are defined as "such diagnostic, therapeutic, and rehabilitative care by medical and paramedical personnel, including hospital and related care, and drugs, prostheses, appliances, equipment and devices as necessary" (Barrett v Lubin, 188 AD2d 40, 42). The State's role is limited to providing reimbursement of one half of the expenses approved by the County and which meet State guidelines (see Public Health Law § 608). Notwithstanding a County's desire for reimbursement, a county retains "unfettered county discretion over PHCP benefits" (Colson ex rel. Colson v Sillman, 35 F3d 106, 109).

That being said, the Claim, despite Defendant's desires, did not limit itself to a single section of the statute or program and, as evidenced by both the opposition and reply papers, there has been State involvement in the denial of the request for a hard stockton bed through the State's Medicaid program. The Court is not prepared on this record or at this juncture of the proceedings to resolve the myriad issues surrounding the mechanics of the Medicaid program, exhaustion of remedies, timeliness of the State's actions (see Kessler v Blum, 591 F Supp. 1013, 1032) and immunity raised by both parties. This being a motion to dismiss, the Court cannot conclude the facts as alleged fail to fit within any cognizable legal theory.

Accordingly, Defendant's motion is granted in part and denied in part consistent with the


The Court shall conduct a preliminary conference by telephone on Tuesday, December 7, 2004 at 10:30 a.m.

October 28, 2004
Albany, New York

Judge of the Court of Claims

[1] Exhibit B is the affidavit of Joseph L. Guy, Ph. D., with annexed Exhibits 1-5 and will be referred to as the (Guy Affidavit) for clarity.