Opinion
# 2012-039-326 Claim No. 113185 Motion No. M-81485
08-09-2012
In the matter of the claim of ASTINA SANCHEZ v. STATE OF NEW YORK
Synopsis
Defendant's collateral estoppel motion is granted to the extent that it seeks an order precluding claimant from relitigating matters actually litigated and specifically decided in a related Supreme Court action. The doctrine of collateral estoppel does not bar claimant from litigating issues before this Court relating to actions of the State through any State employees who were not named as defendants in the Supreme Court action. Defendant's motion for summary judgment is denied, as the motion is virtually identical to a prior motion filed by defendant in this matter and defendant has not submitted any newly-discovered evidence or provided other sufficient cause to entertain a successive motion for summary judgment. Case information
UID: 2012-039-326 Claimant(s): In the matter of the claim of ASTINA SANCHEZ Claimant short name: SANCHEZ Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 113185 Motion number(s): M-81485 Cross-motion number(s): Judge: James H. Ferreira Salenger Sack Kimmel & Bavaro LLP Claimant's attorney: By: Carolyn M. Caccese, Esq. Hon. Eric T. Schneiderman Attorney General of the State of New York Defendant's attorney: By: Ellen Hopkins Assistant Attorney General Third-party defendant's attorney: Signature date: August 9, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
In this claim, claimant seeks damages for alleged negligence and medical malpractice committed by employees of defendant State of New York during claimant's admissions to the University Hospital at Stony Brook (hereinafter the Hospital), in Stony Brook, New York, in July 2005. Claimant, who had a history of seizures, was admitted to the Hospital on July 6, 2005 for a surgical procedure to remove a brain tumor. During her admission, claimant suffered at least one seizure and, on July 9, 2005, fell out of her hospital bed, sustaining injuries. Claimant was released from the Hospital on July 11, 2005. She was later admitted to the Hospital from July 23, 2005 to July 25, 2005 and from July 28, 2005 to July 30, 2005 for treatment related to the injuries she sustained in the fall. Claimant alleges in this claim, among other things, that defendant's employees - including Frederick Gutman, M.D., Tracy Van Ness, P.A., Maxine Corbellini, P.A., as well as other unnamed employees of the State - failed to properly assess claimant's risk of falling, failed to implement Hospital policy regarding fall prevention, failed to properly reassess claimant's risk of falling following her seizure and failed to properly position side rails on claimant's bed.
In addition to the instant claim, claimant brought a concurrent action in the New York State Supreme Court against Gutman, Van Ness, Corbellini and New York Spine & Brain Surgery, P.C. (hereinafter NY Spine & Brain) (Affirmation in Support of Motion, Exhibit F). In that action, claimant alleged, among other things, that the defendants were negligent and committed medical malpractice in treating claimant during her admissions to the Hospital in July 2005, specifically with regard to her fall on July 9, 2005. In a decision dated January 4, 2010, Supreme Court (Costello, J.) granted the defendants' motions for summary judgment and dismissed the action against them. The Court specifically found that Van Ness had established her entitlement to summary judgment, as the evidence demonstrated that she saw claimant for one occasion on July 7, 2012, two days before claimant's fall, and, "as a physician's assistant, it was not her responsibility to assess for a patient's fall potential and she was not familiar with the nursing protocol" (Affirmation in Support of Motion, Exhibit K, at 8). The Court also found that Gutman, Corbellini and NY Spine & Brain had established their entitlement to summary judgment, as the evidence demonstrated that those defendants "did not depart from accepted standards of medical care and treatment of [claimant] and did not proximately cause the injuries complained of" (id.). The Court concluded that the evidence submitted by claimant in opposition to the motions did not raise a triable issue of fact to preclude summary judgment against the defendants and dismissed the complaint.
Following Supreme Court's decision, on July 23, 2010, defendant moved in the instant action for an order granting leave to amend its answer, pursuant to CPLR 3025 (b), to include the affirmative defense of collateral estoppel and, upon granting such leave, precluding claimant from relitigating the issues that were decided in the Supreme Court action. In the alternative, defendant moved for an order pursuant to CPLR 3212 granting it summary judgment in its favor on the ground that there exist no material and triable facts as to defendant's liability. In a decision and order dated December 21, 2010, the Court (Lack, J.) denied defendant's motion for summary judgment as untimely, reasoning that the Court had set September 30, 2008 as the deadline for the filing of summary judgment motions and that "[a]ll of the facts and evidence submitted in the Supreme Court action were available to the parties prior to" that date (Sanchez v State of New York [Ct Cl, Lack, J., Dec. 21, 2010]). The Court also granted defendant's motion for leave to amend its answer to include the affirmative defense of collateral estoppel. Although the Court noted that "no finding was made by the Supreme Court as to the actions of the nurses," it did not directly address the issue of whether the Supreme Court decision had preclusive effect in the instant matter (Sanchez v State of New York [Ct Cl, Lack, J., Dec. 21, 2010]). Defendant thereafter filed a verified amended answer that included the defense of collateral estoppel.
This claim was transferred to the calendar of the undersigned on March 7, 2011. At a telephone conference with the parties on April 18, 2012, the Court granted defendant's request for permission to file a second motion in this matter. Defendant thereafter filed the instant motion, seeking an order pursuant to CPLR 3211 (a) (1) and (5) and CPLR 3212 precluding claimant from relitigating the issues that were decided in the Supreme Court action and granting defendant summary judgment on the ground that there exist no material and triable facts as to defendant's liability. Claimant opposes the motion.
As a preliminary matter, the Court notes that the instant motion is nearly identical to the prior motion filed by defendant in this matter. Generally, the law of the case doctrine " 'operates to preclude successive motions by the same party upon the same proof' " (Ruiz v Anderson, 96 AD3d 691, 692 [2012], quoting Colpitts v Cascade Val. Land Corp., 145 AD2d 750, 751 [1988]). However, the rule against successive motions is not absolute, and exceptions are permitted where "sufficient cause" is shown (Carreras v Weinreb, 33 AD3d 953, 954 [2006]; see Ferguson v Shu Ham Lam, 74 AD3d 870, 872 [2010]). Moreover, the doctrine of law of the case "applies only to legal determinations that were necessarily resolved on the merits in a prior decision" (Brownrigg v New York City Hous. Auth., 29 AD3d 721, 722 [2006]).
The Court finds sufficient cause to permit defendant to make this successive motion, inasmuch as the motion seeks an order precluding claimant from relitigating the issues resolved in the Supreme Court action. As noted above, the Court (Lack, J.) granted defendant's motion for leave to amend its answer to include the defense of collateral estoppel but did not specifically address defendant's request for an order precluding claimant from relitigating the issues that were decided in the Supreme Court action.As the defense of collateral estoppel is a potentially dispositive issue of law in this matter which has been raised and argued by defendant, it should be considered by the Court notwithstanding the rule against successive motions (see Varsity Tr. v Board of Educ. of City of N.Y., 300 AD2d 38, 39 [2002] ["If a dispositive point can be reached, it should be"]; see also Rose v Horton Med. Ctr., 29 AD3d 977, 978 [2006]). Moreover, as a practical matter, defendant could not have sought this relief until after the Supreme Court's decision; as such, the prior motion, to the extent that it sought relief based upon that decision, was not untimely. In addition, the Court finds that it is not constrained by the law of the case doctrine under these circumstances, where the prior decision did not consider or address the collateral estoppel issue (see Brownrigg v New York City Hous. Auth., 29 AD3d at 722). Based upon the foregoing, the Court finds sufficient cause to entertain this motion to the extent that it seeks an order precluding claimant from relitigating the issues resolved in the Supreme Court action.
It is unclear from the Court's (Lack, J.) decision why it did not address the substantive collateral estoppel issue.
Turning to the merits, the doctrine of "[c]ollateral estoppel bars relitigation of an issue 'which has necessarily been decided in [a] prior action and is decisive of the present action' if there has been 'a full and fair opportunity to contest the decision now said to be controlling' " (Tydings v Greenfield, Stein & Senior, LLP, 11 NY3d 195, 199 [2008], quoting Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]; see York v Landa, 57 AD3d 980, 981 [2008]). "[P]reclusive effect is limited to only those 'issues that were actually litigated, squarely addressed and specifically decided' "(Church v New York State Thruway Auth., 16 AD3d 808, 810 [2005], quoting Ross v Medical Liab. Mut. Ins. Co., 75 NY2d 825, 826 [1990]). "The party seeking application of collateral estoppel bears the burden of showing that the decisive, identical issue was 'necessarily decided' in the prior action, while the party opposing application of the doctrine must demonstrate the absence of a full and fair opportunity to contest the prior determination" (Church v New York State Thruway Auth., 16 AD3d at 809-810, quoting Buechel v Bain, 97 NY2d at 304). "The question of whether a litigant had a full and fair opportunity to contest the prior determination on those issues requires a case-by-case analysis of the realities of the prior litigation, 'including the context and other circumstances which . . . may have had the practical effect of discouraging or deterring a party from fully litigating the determination' " (Church v New York State Thruway Auth., 16 AD3d at 810, quoting Ryan v New York Tel. Co., 62 NY2d 494, 501 [1984]).
Here, as noted above, the Supreme Court specifically found that no triable issues of fact existed as to the liability of Gutman, Van Ness, Corbellini and NY Spine & Brain with respect to injuries arising from claimant's fall on July 9, 2005. The instant claim, in part, seeks damages for the alleged medical malpractice of Gutman, Van Ness and Corbellini with respect to the same injuries. The Court finds that the doctrine of collateral estoppel applies to bar claimant from relitigating in the instant action any issues relating to whether these individuals were negligent or committed medical malpractice with respect to claimant's fall and the treatment she received thereafter. Those issues were "actually litigated, squarely addressed and specifically decided" in the Supreme Court action (Ross v Medical Liab. Mut. Ins. Co., 75 NY2d at 826), and claimant was afforded a full and fair opportunity to litigate those issues in Supreme Court. Importantly, claimant does not argue in opposition to this motion that this part of her claim remains viable in the Court of Claims after the resolution of the issues in Supreme Court. As such, defendant's motion is granted to the extent that it seeks a finding that claimant is collaterally estopped from relitigating issues related to the State's liability for negligence or medical malpractice committed by Gutman, Van Ness and Corbellini.
It is defendant's position that this claim should be dismissed in its entirety because the Supreme Court action disposed of all of the issues raised in this claim, arguing that the claim and the bill of particulars "specif[y] only [Gutman, Van Ness and Corbellini] as the subject of the allegations" and contain no specific allegations attributable to other State employees, such as the nursing staff (Affirmation in Support of Motion ¶ 40). The Court disagrees. Although the claim specifically identifies Gutman, Van Ness and Corbellini as responsible treatment providers, it also generally alleges that unnamed "agents, servants, doctors, nurses, physician's assistants and/or employees" of the State were negligent or committed medical malpractice with respect to claimant's care (Claim ¶¶ 4, 28, 29). In her bill of particulars, claimant reiterates that her claim is against, among others, unnamed nurses employed by the State and states that "[a]cts performed by those other than the names referred to in the [c]laim are currently unknown" (Affirmation in Support of Motion, Exhibit E, at ¶¶ 3, 4, 18). Only three State employees were named in the Supreme Court complaint, and the issue of any negligence and/or medical malpractice committed by any State employees other than the named defendants has not been litigated and was not necessarily decided in the prior action. Importantly, defendant's evidence establishes that fall prevention at the Hospital "is a nursing policy to be implemented by the nursing staff," and this claim alleges, in part, that State employees failed to properly assess claimant's risk of falling and failed to implement Hospital policy regarding fall prevention (Affirmation in Support, Exhibit M at ¶ 27). Although the Supreme Court summarized the conclusions of the defendants' expert with respect to whether the nursing policy was appropriately implemented and carried out by the nursing staff in this case, the Court made no findings as to the actions of the Hospital's nursing staff. As such, the Court finds that the doctrine of collateral estoppel does not preclude claimant from litigating issues before this Court relating to actions of the State through any State employees who were not named as defendants in the Supreme Court action. Thus, the Court denies that part of defendant's motion that seeks dismissal of the claim on the ground of collateral estoppel.
Finally, the Court denies that part of defendant's motion that seeks summary judgment dismissing the claim on the ground that no triable issues of fact exist with respect to the conduct of the Hospital's nursing staff. As noted above, this motion, and its accompanying proof, is virtually identical to the prior motion filed by defendant in this matter. The Court (Lack, J.) denied defendant's prior motion for summary judgment as untimely, and defendant has not submitted any newly-discovered evidence or presented other sufficient cause to entertain this successive motion for summary judgment (see Sutter v Wakefern Food Corp., 69 AD3d 844, 845 [2010]). Rather, defendant, unsatisfied with the Court's (Lack, J.) finding that the motion was untimely, is seeking a "a second bite at the apple" before the undersigned (Elie v City of New York, 33 Misc 3d 958, 960 [Sup Ct, Queens County 2011]). Moreover, having considered the evidence submitted by defendant in support of this motion, the Court does not find that consideration of the motion "will further the ends of justice while eliminating an unnecessary burden on the resources of the courts' " (Rose v Horton Med. Ctr., 29 AD3d at 978, quoting Detko v McDonald's Rests. of N.Y., 198 AD2d 208, 209 [1993], lv denied 83 NY2d 752 [1994]).
Accordingly, it is ordered that M-81485 is granted to the extent that claimant is precluded from litigating any issues relating to the alleged negligence and/or medical malpractice of Frederick Gutman, M.D., Tracy Van Ness, P.A. and Maxine Corbellini, P.A. The motion is otherwise denied in all other respects.
August 9, 2012
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion dated April 30, 2012;
2. Affirmation in Support of Motion by Ellen Hopkins, AAG dated April 30, 2012 and exhibits attached thereto;
3. Affirmation in Opposition by Carolyn M. Caccese, Esq. dated June 4, 2012 and exhibits attached thereto; and
4. Affirmation in Reply by Ellen Hopkins, AAG dated June 18, 2012.