New York State Court of Claims

New York State Court of Claims

MORTILLLA v. THE STATE OF NEW YORK, #2007-033-252, Claim No. 108375, Motion No. M-73082


Synopsis



Case Information

UID:
2007-033-252
Claimant(s):
HELAINE MORTILLA, as Administrator of the Estate of ERIC MORTILLA, Deceased
Claimant short name:
MORTILLLA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108375
Motion number(s):
M-73082
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Seidner, Rosenfeld & Guttentag, LLPBy: Larry Rosenfeld, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Adam B. Kaufman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 13, 2007
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim by Helaine Mortilla, as Administrator of the Estate of Eric Mortilla, Deceased, (hereinafter “claimant”) for the alleged medical malpractice by defendant resulting in the death of Eric Mortilla (hereinafter “decedent”). The alleged medical malpractice took place between April 17, 2001 and May 30, 2001 at the University Hospital at Stony Brook, Stony Brook, New York.


Defendant moves this Court[1] for an order to amend its answer to include an affirmative defense of collateral estoppel and, further, to dismiss the claim pursuant to CPLR §3211.[2] The collateral estoppel is based upon a suit by claimant in Supreme Court against attending doctors, the County of Suffolk and Mather Memorial Hospital. The County of Suffolk and Mather Memorial Hospital were released by claimant from the suit. The remaining defendants moved for summary judgment. The court granted summary judgment and found
. . . [t]he testimony of Ms. Wolfe demonstrates that it was not the duty of the physician to assist a patient with payment for his medical care, thus, Dr. Perez did not depart from accepted standards. In addition, since Mr. Mortilla conceded that he did not inform Dr. Fischer that he had previously seen other physicians for his condition, Dr. Fischer did not depart from accepted standards by failing to order the patient’s prior medical record.

The remainder of the findings, as proposed by defendant (Affirmation ¶38), are not findings by the Supreme Court, rather they were recitations of facts contained in depositions or medical records. The Supreme Court made no findings as to the duty or actions of the State of New York.

As leave to amend pleadings should be freely granted, the Court will grant defendant’s motion to amend its answer to include an affirmative defense of collateral estoppel. However, that affirmative defense is limited to the findings of the Supreme Court as detailed above.

Based on the foregoing, defendant’s motion to amend its Answer is granted and its motion to dismiss is denied.


June 13, 2007
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on defendant’s motion: Notice of Motion dated March 19, 2007 and filed March 22, 2007; Affirmation in Support of Adam B. Kaufman, Esq. with annexed Exhibits A-Q dated March 19, 2007 and filed March 22, 2007; Affirmation in Opposition of Larry Rosenfeld, Esq. with annexed Exhibit A dated April 16, 2007 and filed April 18, 2007; Reply Affirmation of Adam B. Kaufman, Esq. with annexed Exhibit A dated April 23, 2007 and filed May 1, 2007.
[2].Defendant did not move for summary judgment pursuant to CPLR 3212 because the Court’s deadline for such motion expired by the time defendant made the instant motion.