|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) :|
|Judge:||James J. Lack|
|Claimant's attorney:||Brody, O'Connor & O'Connor, Esqs.
By: Scott A. Brody, Esq.
|Defendant's attorney:||Andrew M. Cuomo, New York State Attorney General
By: Joseph Tipaldo, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 31, 2009|
|See also (multicaptioned case)|
This claim arises from the 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.
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(1) . 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.
In opposition, claimant submits an expert affidavit. The affidavit is at odds with the State's position as to the behavior of the cardiologists and the proximate cause of claimant's injuries.
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).
From the evidence presented, it is clear significant issues of fact exist.
Based upon the foregoing, defendant's motion for summary judgment is denied.
December 31, 2009
Hauppauge, New York
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 August 11, 2008 and filed August 13, 2008; Affirmation of Joseph Tipaldo, Esq. with annexed Exhibits A-C dated August 11, 2008 and filed August 13, 2008; Physician's Affirmation of Charles B. Huddleston, M.D. sworn to August 6, 2008 and filed August 13, 2008; Affirmation in Opposition to Motion for Summary Judgment of Scott A. Brody, Esq. with annexed Exhibits A-D dated August 24, 2009 and filed September 2, 2009; Reply Affirmation of Joseph Tipaldo, Esq. with annexed Exhibit D dated September 18, 2009 and filed September 23, 2009.