New York State Court of Claims

New York State Court of Claims

THORNTON v. THE STATE OF NEW YORK, #2009-033-325, Claim No. 87767, Motion No. M-75384


Synopsis



Case Information

UID:
2009-033-325
Claimant(s):
JONATHAN THORNTON, ALSO KNOWN AS JONATHAN DELUCA, AN INFANT UNDER THE AGE OF 14, BY HIS MOTHER AND NATURAL GUARDIAN, ANTONINA THORNTON AND ANTONINA THORNTON, INDIVIDUALLY
Claimant short name:
THORNTON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
87767
Motion number(s):
M-75384
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Brody, O’Connor & O’Connor, Esqs.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Joseph Tipaldo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 24, 2009
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim arises from injuries sustained by Jonathan Thornton, also known as Jonathan DeLuca, an infant under the age of 14, by his mother and natural guardian, Antonina Thornton and Antonina Thornton, individually (hereinafter "claimants") due to the alleged medical malpractice at Stony Brook University Hospital, Stony Brook, New York (hereinafter “Hospital”). Claimants allege that the malpractice occurred between April 24, 1990 and January 7, 1991.


The infant claimant was born on April 24, 1990, with decreased vascularity of the lung and an enlarged heart. Claimant endured surgical intervention to treat the problems. Post-surgical complications arose. According to the claim, claimants allege deviations from standards of good and usual pediatric cardiological care. Claimants also allege an inappropriate delay in instituting surgical or therapeutic intervention. Lastly, claimants allege that a shunt operation was inappropriate.

Defendant moves for summary judgment pursuant to CPLR 3212. Defendant submits an expert affidavit. The expert opines that the treatment provided to the infant claimant was appropriate and did not deviate from good and accepted medical practices.

Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if movant provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).

Claimants submit no opposition to the instant motion.[1]

Based upon the foregoing, defendant’s motion for summary judgment is granted without opposition, and the claim is dismissed.


March 24, 2009
Hauppauge, New York

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




[1].On May 1, 2008, this Court held a conference and ordered that any summary judgment motion which the parties wished to submit must be filed in the Clerk’s office by August 15, 2008. Defendant submitted the instant motion on August 13, 2008. The motion indicates it was served on claimants on August 12, 2008, by depositing a copy of the motion into the mail addressed to claimants’ attorneys. The motion was originally returnable on September 24, 2008. On September 11, 2008, claimants’ counsel requested an adjournment of the motion. The Court granted an adjournment until November 26, 2008. No further requests for an adjournment have been received by the Court.