New York State Court of Claims

New York State Court of Claims

THORNTON v. THE STATE OF NEW YORK, #2004-033-070, Claim No. 87767, Motion No. M-68113


Case Information

JONATHAN THORNTON, a/k/a JONATHAN DeLUCA, an infant under the age of 14, by his m/n/g, ANTONINA THORNTON and ANTONINA THORNTON, individually
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:
Brody, O'Connor & O'Connor, Esqs.By: Scott A. Brody, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Mary Oleske, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 30, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from the alleged medical malpractice of defendant, resulting in injuries sustained by Jonathan Thornton (hereinafter "infant claimant"). The matter was brought by the mother and natural guardian, Antonina Thornton (hereinafter "claimant").
According to the Amended Claim[1] (claimant's Exhibit A), the cause of action accrued on January 8, 1991. The original Claim was served upon the Attorney General's office on August 13, 1993. The case was assigned to Judge Leonard Silverman in Hauppauge, New York.[2] On March 8, 1995, claimants discontinued this action to proceed with an action in Supreme Court against individual doctors. Claimants move this Court to restore this matter to the Court's calendar[3].

The basis for claimants' motion is that the Court made a mistake when it filed the order discontinuing this action. According to claimants, counsel wrote a letter asking the Court to discontinue the action without prejudice. However, the Daily Report from March 8, 1995, indicates that the case was dismissed with prejudice. In support of his position, claimants' counsel states that while pursuing discovery, he was told by the Court's law secretary that the Court could not compel attending doctors to testify in this action because they were not employees of the defendant. On March 3, 1995, claimants' counsel wrote to the Court, stating that he wished to discontinue the case without prejudice and asked that the trial scheduled for March 8, 1995 be adjourned.

In opposition, defendant argues that claimants offer no excuse as to the nine year delay in proceeding with this action. Defendant argues that it would be substantially prejudiced if the Court were to grant claimants' application.

In reply, claimants state that defendant's argument of prejudice is without merit for two reasons. First, infant claimant is a minor and as such would still be able to timely file a claim. Claimants' second argument is that defendant has been involved in the Supreme Court action during the last nine years.

As to the mother and natural guardian's individual claim against defendant, claimants concede that it was barred by the statute of limitations at the time it was commenced. Therefore, claimants' application to restore the mother's individual action is denied.

The Court turns its attention to the infant claimant's matter. The Court finds no merit to claimants' argument that the defendant has been involved in the Supreme Court action and would suffer no prejudice. Claimants confuse defendant and its attorneys. The NYS Attorney General's Office is counsel for defendant in this matter. In addition, the NYS Attorney General's Office may represent individuals employed by the State of New York in actions in Supreme Court if requested by the individual sued (Public Officers Law §17). The interests of those parties, however, are separate and distinct.

The establishment of the court system is found in article VI of the New York State Constitution. Article VI §7 states that the Supreme Court shall "have general original jurisdiction in law and equity and the appellate jurisdiction herein provided."
The Supreme Court in this State is a court of general original jurisdiction in law and equity (see N. Y. Const., art. VI, § 7, subd. a.) and, in conformity with its all inclusive powers, the court is authorized in any action to render such judgment as is appropriate to the proofs received in conformity with the allegations of the pleadings, irrespective of the nature of the relief demanded, subject, of course, in a proper case, to the imposition of such terms as may be necessary to protect the rights of any party.
(Kaminsky v Kahn, 23 AD2d 231, 236).

Separately, the Court of Claims is established by NY Const art 6 §9, which states, in relevant part that "[t] he court shall have jurisdiction to hear and determine claims against the state or by the state against the claimant or between conflicting claimants as the legislature may provide." The Court of Claims is limited to awarding money damages against the State of New York (Matter of Silverman v Comptroller, 40 AD2d 225).

While the Court recognizes that defendant is substantially prejudiced, the infant claimant's action must be restored and proceed to trial. Infant claimant was born in 1990 and thus is still entitled to file a claim in regard to this incident. The Court finds that the original claim was never in fact discontinued. To discontinue the instant action, a court order was necessary (CPLR 3217(b)). This was never obtained by either party.[4]

Based on the foregoing, the motion to restore the infant claimant's action against defendant is granted. The parties shall contact the Court to schedule a conference.

September 30, 2004
Hauppauge, New York

Judge of the Court of Claims

[1]The Court will refer to the documents as the Amended Claim and Claim rather than the terminology "Amended Notice of Claim and Notice of Claim" utilized by the claimants.
[2]Judge Silverman retired on December 31, 2000, and the case has been assigned to this Court.
[3]The following papers have been read and considered on claimants' motion to restore this matter to the Court's calendar: Notice of Motion dated February 26, 2004 and filed March 1, 2004; Affirmation in Support of Scott A. Brody, Esq. with annexed Exhibits A-C dated February 26, 2004 and filed March 1, 2004; Affirmation in Opposition of Mary Oleske, Esq. dated April 29, 2004 and filed May 3, 2004; Reply Affirmation of Scott A. Brody, Esq. dated May 10, 2004 and filed May 12, 2004.
[4]There was a Daily Report which memorialized what occurred on March 8, 1995, however, it was not signed by the judge nor did the report state that it was an Order pursuant to §206.10 of the Uniform Rules for the Court of Claims.