New York State Court of Claims

New York State Court of Claims

MURPHY v. THE STATE OF NEW YORK, #2006-033-226, Claim No. 107894, Motion No. M-71991


Case Information

GABRIEL MURPHY, an infant by his natural parent and guardian, NIKKI MURPHY, and NIKKI MURPHY and RYAN MURPHY, his parents 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):

James J. Lack
Claimant’s attorney:
Daniel W. DeLuca, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Mary Y.J. Kim, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 29, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim for injuries to Gabriel Murphy, an infant by his mother and natural guardian, Nikki Murphy, and by Nikki Murphy and Ryan Murphy, individually (hereinafter “claimants”) based upon the alleged medical malpractice by the State of New York (hereinafter “State”). The alleged medical malpractice occurred “during the 8 months prior to June 19, 2001 through on or about July 12, 2001 and thereafter at the State University Hospital and Medical Center at Stony Brook, New York” (¶ 5 of the Second Amended Claim).

Claimants move to dismiss affirmative defenses to the answer to the Amended Claim rather than the Second Amended Claim due to filing errors in his office[1]. In his reply papers, counsel avers that he still is seeking the dismissal of the second and third affirmative defenses contained in the answer to the Second Amended Claim. Claimants support this argument with reference to testimony given in a concomitant Supreme Court action and an affidavit of Nikki Murphy which reference the deposition. In addition, claimants ask this Court to declare that defendant had no policy and/or procedure for treatment, care and prevention of GBS sepsis in prenatal care and delivery of infants.

Defendant opposes this motion arguing that discovery is ongoing.

This Court has held one conference in this matter on December 9, 2004. At that time, claimants were to forward hospital records to defendant to identify signatures. Defendant indicated it was filing a motion in regard to striking a notice to admit served by claimants. Various adjournments occurred during the pendency of said motion resulting in claimants withdrawing the notice to admit and defendant withdrawing its motion on November 22, 2004. Various adjournments by the parties followed and finally the filing of the instant motion. While this case has been pending for a lengthy period of time, no discovery or depositions have been ordered in this action. As such claimants’ motion is indeed premature.

Based upon the foregoing, claimants’ motion is denied. In addition, the parties are prohibited from filing any further motions in this matter without the Court’s permission.

December 29, 2006
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers have been read and considered on claimants’ motion: Notice of Motion dated July 13, 2006 and filed July 13, 2006; Affirmation in Support of Daniel W. DeLuca, Esq. with annexed Exhibit A dated July 13, 2006 and filed July 13, 2006; Affidavit of Nikki Murphy sworn to July 13, 2006 and filed July 13, 2006; Affirmation in Opposition of Mary Y.J. Kim, Esq. with annexed Exhibits A-B dated September 5, 2006 and filed September 8, 2006; Reply Affirmation of Daniel W. DeLuca, Esq. with annexed Exhibits A-G dated September 21, 2006 and filed September 25, 2006.