New York State Court of Claims

New York State Court of Claims

ELLITHORPE v. STATE OF NEW YORK, #2007-018-557, Claim No. 107853, Motion Nos. M-72197, CM-72473


Claimant’s motion is granted and shall provide Defendant with the list of the witnesses sought to depose. Defendant shall make the witnesses available for depositions within 90 days from receipt of the list. Defendant’s cross-motion to dismiss the claim based upon res judicata and release is 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:
CARROLL & CARROLL LAWYERS, P.C.By: John Benjamin Carroll, Esquire
Defendant’s attorney:
Attorney General of the State of New York
By: Maureen A. MacPherson, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 22, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant brings a motion seeking an Order directing Defendant to comply with certaindiscovery demands and to make certain witnesses available for depositions. Defendant opposes the motion and cross-moves for an Order dismissing the claim on the grounds of res judicata and release.

The claim, filed June 10, 2003, and served upon the Attorney General on June 10, 2003, seeks damages for injuries caused as a result of the alleged malpractice of Gregory W. Canute, M. D., an employee or representative of SUNY Upstate Medical University. It is alleged that on or about July 2002, Dr. Canute recommended that Claimant undergo a surgical shunt operative procedure. Dr. Canute allegedly performed the operation negligently by placing the shunt in such a manner and position as to traumatize the spinal and abdominal nerves of the Claimant. Claimant alleges permanent injuries as a result and makes a claim of lack of informed consent pursuant to Public Health Law § 2805(d). Defendant interposed an Answer to the claim. An amended preliminary conference order scheduling discovery was signed on July 19, 2004.

Claimant commenced a State Supreme Court action against Dr. Canute, individually, at the same time as the claim was brought in this Court. On May 24, 2005, Claimant and the State of New York entered into a “Stipulation of Conditional Dismissal and Order” for the Court of Claims action. That stipulation acknowledged that there was a pending State Supreme Court action arising from the same incident giving rise to the claim in this Court. In the Stipulation, Claimant reserved the right to reactivate the claim in this Court, if “the pending Supreme Court action does not provide that which claimant in his sole judgment considers to be full relief.” That Stipulation set forth specific conditions by which Claimant could reactivate this claim after the termination of the Supreme Court action. That Stipulation was signed and made an Order on June 20, 2005, and filed with the Clerk of the Court of Claims on June 29, 2005.

On February 3, 2006, Claimant settled the Supreme Court action brought individually against Dr. Gregory Canute. As a part of that settlement, Claimant executed a release to Dr. Canute which provided in relevant part:
LEE ELLITHORPE, as RELEASOR, ...[and] GREGORY W. CANUTE, M.D., as RELEASEE, receipt whereof is hereby acknowledged, releases and discharges GREGORY W. CANUTE, M.D., the RELEASEE, RELEASEE’S heirs, executors, administrators, successors and assigns from all actions, causes of actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialities, covenants, contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, extents, executions, claims and demands whatsoever, in law, admiralty or equity, which against the RELEASEE, the RELEASOR, RELEASOR’S heirs, executors, administrators, successors and assigns ever had, now have or hereafter can, shall or may, have for, upon, or by reason of any matter, cause or thing, whatsoever from the beginning of the world to the day of the date of this RELEASE.

More particularly this releases any and all claims, causes of action,

controversies or disputes by plaintiff Lee Ellithorpe against Gregory

W. Canute, M.D., Defendant, Supreme Court, Onondaga County,

Index No. 2003-3683.

The words “RELEASOR” and “RELEASEE” include all releasors and all

releasees under this RELEASE.

This RELEASE may not be changed orally...

A stipulation discontinuing the Supreme Court action with prejudice was also executed. Thereafter, Claimant, in accordance with the “Stipulation of Conditional Dismissal and Order” in the Court of Claims action, served upon Defendant on February 3, 2006, via certified mail, return receipt requested, a letter advising of Claimant’s intent to reactivate the Court of Claims case and seeking depositions of Upstate Medical University Emergency Room doctors in attendance during Claimant’s operation. Defendant refused to schedule the depositions on the ground that in light of the release Claimant signed in the Supreme Court action, he no longer had a viable cause of action against the State. These motions then ensued.

The Court will address Defendant’s cross-motion first. Defendant notes that the Supreme Court action against Dr. Gregory Canute was settled in early 2006 for a sum of $80,000 which was paid by Dr. Canute. Defendant argues that the Supreme Court action involved the exact same transaction and occurrences which are underlying the Court of Claims action. Since the State’s liability is derivative only, arising from its status as the employer of Dr. Canute where Dr. Canute has settled the direct action against him, the State, under these circumstances is entitled to res judicata. The fact that different theories of liability underlie the Court of Claims action does not change the preclusive effect of res judicata based upon the settled Supreme Court action.

Claimant, in opposition, argues that the release he executed did not release the State of New York, and General Obligations Law § 15-108 permits the maintenance of this action. It provides:

[w]hen a release or a covenant not to sue or not to enforce a judgment

is given to one of two or more persons liable or claimed to be liable in tort

for the same injury, or the same wrongful death, it does not discharge any

of the other tortfeasors from liability for the injury or wrongful death

unless its terms expressly so provide, but it reduces the claim of the

releasor against the other tortfeasors to the extent of any amount

stipulated by the release or covenant, or in the amount of the

consideration paid for it, or in the amount of the released tortfeasor’s

equitable share of the damages under article fourteen of the civil practice

law and rules.

Claimant argues that in light of General Obligations Law § 15-108, there was no need for an express reservation of Claimant’s rights against the State of New York in the release it gave to Dr. Canute in the Supreme Court action. Claimant further argues that in entering into the release with Dr. Canute in the Supreme Court action there was never any intention that the settlement of the individual action would preclude or be a settlement or discharge of any action against the State.

The Defendant’s cross-motion must be denied. First, the release Claimant executed in favor of Dr. Canute does not release the State of New York from potential liability as Dr. Canute’s employer. The enactment of General Obligations Law (GOL )§15-108 was intended to abrogate the common-law rule that a release given to one tortfeasor, whether that tortfeasor was an active wrongdoer or merely answerable for the wrongdoing of someone else as the result of an agency relationship or imputed negligence, effectively released or discharged the potential liability of any other tortfeasor for the same injury, (see Hill v St. Clare’s Hosp., 67 NY2d 72; Utter v South Brookhaven Obstetric & Gynecologic Assoc., P.C., 135 AD2d 811, 812). Although, GOL §15-108 is intended to be read in conjunction with the rights of contribution set forth in CPLR article 14, which apportions liability for wrongdoing among joint tortfeasors to prevent an injured party from obtaining a double recovery, the section has also been held applicable to the imposition of vicarious liability, as in an employer/employee situation, even though principles of indemnification rather than contribution are invoked (Riviello v Waldron, 47 NY2d 297, 306-307). Thus, when an action against an allegedly negligent employee is settled and the action discontinued against the employee, recovery against the employer based upon the theory of vicarious liability is not precluded (see Riviello, 47 NY2d 297 at 306-307; Wright v Shapiro, 35 AD3d 1253; Pace v Hazel Towers, Inc., 183 AD2d 588; Nobel v Ambrosio, 120 AD2d 715, 717; cf, Utter, 135 AD2d at 812 Ott v Barash, 109 AD2d 254; Mead v Bloom, 94 AD2d 423).

Claimant’s action against the State is also not barred by the doctrine of res judicata based upon the discontinuance of the action with prejudice against Dr. Canute, individually, in Supreme Court. Res judicata is a doctrine that rests on public policy considerations and was intended to “ensure finality, prevent vexatious litigation and promote judicial economy.” (Xiao Yang Chen v Fischer, 6 NY3d 94, 100; Matter of Hoffman, 287 AD2d 119, 121). The doctrine is applied to bar the re-litigation of a claim that has been brought to final conclusion even if the new claim is based upon different theories or seeks a different remedy (Xiao Yang Chen, 6 NY3d 94; Matter of Hodes v Axelrod, 70 NY2d 364). As to the parties involved in a litigation and others in privity with them, once there is a judgment on the merits the determination is conclusive as to issues of fact and questions of law decided therein in any subsequent action (Fuentes v Brookhaven Memorial Hospital, 10 AD3d 384). “An order of discontinuance effecting settlement on the merits is accorded the same res judicata effect as the entry of judgment on the merits.” (Matter of Hoffman, 287 AD2d 119, 123) “However, unfairness may result if the doctrine is applied too harshly; thus ‘[i]n properly seeking to deny a litigant two ‘days in court,’ courts must be careful not to deprive [the litigant] of one.’” (Xiao Yang Chen, 6 NY3d at 100; quoting Matter of Reilly v Reid, 45 NY2d 24, 28).

The Claimant’s release and stipulation of discontinuance in the Supreme Court action against the individual doctor includes no admission of wrongdoing or acknowledgment that Defendant was free of malpractice, nor was there any order or judgment ever entered on the merits. Thus, collateral estoppel and res judicata are inapplicable (Towne v Asadourian, 277 AD2d 800; Gallo v Teplitz Tri-State Recycling, Inc., 254 AD2d 253, 254).

Moreover, Defendant entered into the Stipulation of Conditional Dismissal and Order with Claimant in this action acknowledging the related and pending Supreme Court action arising from the same incident and agreeing to permit Claimant “the right to reactivate this claim if the pending Supreme Court action does not provide that which claimant in his sole judgment considers to be full relief.” To allow Defendant now to successfully argue that the termination, by settlement, of the Supreme Court action is res judicata to the continuation of the Court of Claims action would be untenable. The release and stipulation of discontinuance in the Supreme Court action do not mention or in any way release the State of New York, there was no order or judgment on the merits, and given the terms of the Stipulation of Discontinuance in this action it is unquestionable that Claimant has the right to now pursue his Court of Claims action against the State.

Turning to Claimant’s motion, it is GRANTED. Claimant shall provide Defendant with a list of the witnesses he is seeking to depose and Defendant shall have 90 days from receipt of the list to make the witnesses available for depositions.

February 22, 2007
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion.............................................................................................1

Affidavit of John Benjamin Carroll, Esquire, in support, with exhibit

attached thereto....................................................................................2

Notice of Cross-Motion...................................................................................3

Affirmation of Maureen A. MacPherson, Esquire, in opposition

to the Claimant’s motion, and in support of Defendant’s

cross-motion with exhibits attached thereto........................................4

Defendant’s Memorandum of Law...................................................................5

Answering Affidavit of John Benjamin Carroll, Esquire, in opposition

to Defendant’s cross-motion with exhibits attached thereto...................6