New York State Court of Claims

New York State Court of Claims

BALACKY v. STATE OF NEW YORK, #2007-018-569, Claim No. 100866, Motion No. M-71699


Defendant’s motion to preclude expert witness testimony is granted, and without that testimony, Claimant will be unable to prove a prima facie case. Summary judgment is granted and the claim dismissed.

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:
Defendant’s attorney:
Attorney General of the State of New York
By: PATRICIA M. BORDONARO, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 9, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant brings a motion for preclusion and summary judgment. Claimant’s counsel

has submitted an affirmation in response to the motion.

Claimant, John Balacky, served a notice of intention upon the Assistant Attorney General on April 2, 1998, and filed a claim and an amended claim with the Clerk of the Court on August 12, 1999. In the amended claim, Claimant[1] alleges, as a “first claim,” that from February 1992 to February 20, 1997, while an inmate under the custody of the Department of Correctional Services, the State failed to administer a PSA test to timely diagnose prostate cancer before it had spread beyond the confines of the prostate and failed to conduct adequate examinations of the prostate. Claimant alleges the State did not take an appropriate history of his urinary complaints or make proper and timely referrals. As a “second claim” Claimant makes the same allegations against State University of New York Upstate Medical University (hereinafter University Hospital) from May 3, 1995 to April 11, 1996. A derivative claim for Yadwiga Balacky as a “third” claim is also interposed.

By Decision and Order[2] signed June 11, 2003, this Court found that Claimant was collaterally estopped from re-litigating the issue of whether the medical staff at the correctional facilities and Dr. Batra at University Hospital committed medical malpractice by not diagnosing Claimant with prostate cancer from 1992 through April 11, 1996. The collateral estoppel arose from the dismissal of Claimant’s Supreme Court action for failure to establish a prima facie case against Dr. Batra.

The remaining issues were scheduled to be tried on October 4-7, 2005. At Defendant’s request for a time frame for expert witness disclosure, the Court ordered Claimant to provide expert witness disclosure by March 31, 2005 and Defendant by May 31, 2005. Claimant’s counsel discussed an extension of time to provide expert witness disclosure with the Assistant Attorney General. The Assistant Attorney General contacted the Court April 21, 2005 expressing concern that Claimant had not yet complied with expert witness disclosure. On May 9, 2005, the Assistant Attorney General wrote to Claimant’s counsel, and sent a copy to the Court, expressing concern that no expert disclosure had been provided. On July 25, 2005, Claimant’s counsel requested an extension of the time for expert disclosure and an adjournment of the trial. The trial was adjourned to February 28, 2006, and Claimant was directed to provide expert disclosure by January 6, 2006, and Defendant by January 27, 2006. On January 6, 2006, Claimant’s counsel again requested an extension of time to provide expert disclosure and an adjournment of the trial. The Court held a conference with counsel on January 17, 2006, extending Claimant’s time frame to provide expert discovery to March 3, 2006, and for Defendant to March 17, 2006. The Court directed that there would be no further disclosure extensions. Another conference was held on March 8, 2006, at which time Defendant was authorized to bring this motion.

It is Defendant’s position that Claimant has failed to disclose an expert as directed by the Court, and his failure to do so should now preclude him from providing expert witness testimony at trial. Without expert witness testimony, Claimant will be unable to prove a prima facie case; therefore, summary judgment should be granted and the claim dismissed.

Claimant’s counsel has indicated that he has been unable to obtain an expert to testify at trial despite having tried to do so. Claimant’s counsel further represents that he plans to offer no medical testimony at trial and due to anticipated difficulties with establishing causation does not oppose Defendant’s motion.

Based upon the foregoing and Claimant’s submissions to the Court, Defendant’s motion is GRANTED in its entirety and the claim is DISMISSED.

May 9, 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

Affirmation of Patricia M. Bordonaro, Esquire, Assistant Attorney

General, in support, with exhibits attached thereto..................2

Responding affirmation of Joseph Dubinsky, Esquire.........................3

[1].Claimant will refer to John Balacky, unless otherwise noted, since Yadwiga Balacky’s claim is solely derivative in nature.
[2].Balacky v State of New York, Ct Cl, Fitzpatrick, J., signed June 11, 2003, Cl. No. 100866, Motion No. M-65567, UID No. 2003-018-230.