New York State Court of Claims

New York State Court of Claims

ROMAN v. THE STATE OF NEW YORK, #2006-033-174, Claim Nos. 105619, 106652, Motion Nos. M-70813, CM-70939


Case Information

ALEX ROMAN, by his mother and natural guardian, ROSEALIE CONTE, and ROSEALIE CONTE, individually
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105619, 106652
Motion number(s):
Cross-motion number(s):
James J. Lack
Claimant’s attorney:
Silberstein, Awad & Miklos, P.C.
By: Joseph C. Muzio, Esq. and Paul N. Nadler, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Bridget E. Farrell, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 15, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim by Rosealie Conte, individually and as the mother and natural guardian of Alex Roman, an infant (hereinafter “claimants”) for the alleged medical malpractice of the State of New York (hereinafter “State”). The alleged malpractice occurred on or about June 19, 2000 at the State University Hospital at Stony Brook, Stony Brook, New York.

Defendant moves this Court for summary judgment pursuant to CPLR 3212[1]. Claimant cross- moves for permission to discontinue this action with prejudice[2].

At the preliminary conference of this matter, claimant’s counsel indicated that claimant brought an action in Supreme Court against the individuals involved in this matter. Counsel also indicated that at some point he may decide to discontinue the matter against the State, depending upon discovery and legal strategies. In fact, claimant submitted a stipulation of discontinuance with prejudice to the Court to be so ordered. The stipulation was consented to by both parties. In October 2005, this Court returned the stipulation to claimant’s counsel without “so ordering” it. The stipulation stated that no party was an infant, when clearly one party was, and this Court requires an affidavit from the infant’s representative acknowledging they understand the claim is being discontinued with prejudice. Thereafter, defendant no longer consented to the discontinuance and the instant motion practice ensued.

The Court will address claimant’s cross-motion first.

Defendant now opposes the discontinuance it previously consented to because it fears claimant is “forum shopping”. Specifically, defendant cites claimant’s affidavit indicating that her attorney has indicated that he believes there is a better chance for recovery and in a higher amount in the Supreme Court rather than the Court of Claims.

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. VI §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).

Thus, even though the legal issues may be identical, according to defendant, this Court does not have jurisdiction over the individual defendants in Supreme Court. In determining the legal issues, each court is presented with defendants who are not present in their venue, yet they are necessary in the assessment of liability. It is also not inconceivable to get inconsistent verdicts in the separate venues.

A claimant in the position of the instant claimant has no choice but to bring an action in each court in order to make sure all possible responsible parties are properly sued. Conceivably, two trials could be held - one in each forum. However, it is possible to achieve inconsistent verdicts, thereby expending double the resources (e.g. expert fee’s, time) with little or no recovery in one of the forums. Many lawyers will therefore analyze the cases and proceed in the forum which provides the best chance of recovery. Claimant is not attempting to have a judge recuse himself to chance getting one more receptive to her position. Nor is claimant attempting to find some reason to move the case from Suffolk County to a county with statistically higher jury awards. This is not forum shopping. This is analysis of the case, and taking the best course which is currently available to the client.

The question which begs asking is, what purpose does defendant’s opposition to the discontinuance serve when defendant seeks dismissal by summary judgment?

The answer is simple - collateral estoppel. If claimant were to move for summary judgment and this Court found that each or some of the individual doctors were liable that would do nothing for claimant in this action, unless defendant were responsible for those individuals. Further, claimant would still have to prove her case again against the individuals in Supreme Court. This Court’s finding of liability against the individuals could not be used by the claimant since those individual defendants are not present in the Court of Claims with a full and fair opportunity to be heard.

Conversely, if this Court were to find no liability on behalf of some or all of the individual defendants present in the Supreme Court case, then defendant would be able to go from one forum to the other with this Court’s findings. Defendant would be able to argue collateral estoppel against claimant, since claimant was present in the Court of Claims with a full and fair opportunity to be heard.

CPLR 3217(b) allows a party to discontinue its actions by order of the Court. The granting of such a motion is within the discretion of the court but should not be granted where the rights of the attorneys or third parties are impaired (Glenmark, Inc. v Carity, 22 AD2d 681).

If the Court grants claimant’s motion, the attorneys would find themselves in almost the same position they are currently in - - prosecuting and defending an action in Supreme Court, but without the Court of Claims action. There are no third parties in this action. As to the outside parties (i.e., the individual defendants in the Supreme Court action), they would find themselves in the exact same position they are now - - defending themselves in Supreme Court.

Accordingly, the Court grants claimant’s cross-motion to discontinue Claim Nos. 105619 and 106652 with prejudice and denies defendant’s motion for summary judgment as moot.

The Clerk of the Court is directed to close the files.

March 15, 2006
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers have been read and considered on defendant’s motion: Notice of Motion dated October 12, 2005 and filed October 17, 2005; Affirmation of Bridget E. Farrell, Esq. with annexed Exhibits A-M dated October 12, 2005 and filed October 17, 2005; Amended Notice of Motion dated October 12, 2005 and filed October 21, 2005; Affirmation in Opposition of Joseph C. Muzio, Esq. with annexed Exhibits A-S dated November 7, 2005 and filed November 15, 2005.
[2].The following papers have been read and considered on claimant’s cross-motion: Notice of Cross-Motion dated November 11, 2005 and filed November 15, 2005; Affirmation in Support of Joseph C. Muzio, Esq. with annexed Exhibits A-E dated November 11, 2005 and filed November 15, 2005; Affirmation in Opposition to Cross-Motion and Reply of Bridget E. Farrell, Esq. dated November 16, 2005 and filed November 17, 2005; Reply Affirmation in Support and Sur-Reply Affirmation in Opposition to New Issue Raised in Defendant’s Reply Affirmation of Paul N. Nadler, Esq. with annexed Exhibit A dated November 21, 2005 and filed November 23, 2005.