New York State Court of Claims

New York State Court of Claims
STEPHEN v. THE STATE OF NEW YORK, # 2020-053-528, Claim No. 126876, Motion No. M-95432


The State's motion for summary judgment of this medical malpractice claim is granted and the action is dismissed. The claim arose out of alleged injuries received by the infant claimant in a cesarean section delivery. Claimants failed to oppose defendant's motion.

Case information

UID: 2020-053-528
Claimant(s): KAREN STEPHEN, as Mother and Natural Guardian of E.E.D. and KAREN STEPHEN, Individually,
Claimant short name: STEPHEN
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 126876
Motion number(s): M-95432
Cross-motion number(s):
BY: No Appearance
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
BY: Kathleen M. Gizzo, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: July 31, 2020
City: Buffalo
Official citation:
Appellate results:
See also (multicaptioned case)


Claimants Karen Stephen, as Mother and Natural Guardian of E.E.D., an infant born at State University New York Downstate Medical Center (Downstate) on July 16, 2015, and Karen Stephen, individually, filed claim no. 126876 on October 14, 2015, alleging a medical malpractice claim arising out of the cesarean section delivery of the infant E.E.D. at Downstate. Claim no. 126876 was originally assigned to the Honorable Thomas H. Scuccimarra. By Transfer of Order filed on January 27, 2017, this claim was transferred to my calendar.

Procedural History

Claim no. 126876 was filed on October 14, 2015 (Defendant's Exhibit B). Defendant filed its verified answer on November 17, 2015 (Defendant's Exhibit C). In their bill of particulars, claimants alleged that the cesarean section delivery at Downstate was performed improperly resulting in injuries to the infant claimant including a traumatic birth, a broken clavicle, crepitus, right arm disability and developmental delays (Defendant's Exhibit D).

Claimants commenced a separate action in State Supreme Court arising out of the delivery at Downstate of the infant claimant against Dr. Sara Yu and Dr. Ehab Abdelmalek (Index 512234/2017). Drs. Yu and Abdelmalek moved for summary judgment dismissing the State Supreme Court action against them. Their motion for summary judgment was "granted in its entirety without any opposition" by the Honorable Genine D. Edwards, and filed on September 25, 2019 (Defendant's Exhibits E and F).

By motion no. M-95432, defendant State of New York moves pursuant to CPLR 3025 for permission to amend its answer to include the affirmative defense of collateral estoppel based on the decision in the State Supreme Court case and upon such leave, precluding claimants from re-litigating issues for which estoppel is asserted (see the Eleventh Affirmative Defense in Defendant's proposed amended answer, Defendant's Exhibit G). In addition, defendant moves pursuant to CPLR 3212 for summary judgment, dismissing the claim with prejudice.

Factual Background

Claimant Karen Stephen presented to Downstate on July 16, 2015 for a scheduled, repeat, elective, at term, cesarean section delivery. The infant was born with Apgar scores of 8 and 9. According to the operative report, the infant claimant was born a-traumatically (without trauma). In the nursery, the infant was noted to be moving all extremities well but crepitus was felt on the right side of the clavicle. An x-ray showed a right clavicular fracture. Following a pediatric orthopedic consult, it was noted that the infant claimant was moving both of her arms normally since birth and that there was no swelling or vascular congestion. The claimants were discharged from Downstate on July 19, 2015. The infant claimant was to follow up with the Downstate Orthopedic clinic. Claimant indicated, however, that the infant claimant would follow up with a private orthopedist as they were moving to Georgia (see Downstate Medical Records, Defendant's Exhibit K).


Pursuant to CPLR 3025 (b), a party may amend a pleading at any time by leave of Court. Leave to amend shall be freely given absent prejudice or surprise (Edenwald Contr. Co. v City of New York, 60 NY2d 957 [1983]). Here, defendant moves to amend its answer to assert the affirmative defense of collateral estoppel based on the decision in the State Supreme Court action which granted summary judgment dismissing the Supreme Court action as against the surgeons who delivered the infant claimant, Drs. Yu and Abdelmalek. The claimants herein were the plaintiffs in the Supreme Court action. Claimants made no attempt to show that they would be surprised or prejudiced if defendant was permitted to amend its answer. In fact, claimants offered no opposition to defendant's motion. Accordingly, the Court grants defendant's motion to amend its answer, which shall be deemed to include the eleventh affirmative defense in the amended answer of collateral estoppel.

The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue which was previously decided against that party in a prior proceeding in which the party had a fair opportunity to contest the issue (Gilberg v Barbieri, 53 NY2d 285 [1981]). These two requirements for invoking the collateral estoppel doctrine have been met herein. The claimants in the present claim were the same plaintiffs in the companion Supreme Court action in which summary judgment was granted against them. Moreover, the gravamen of the present claim is that the defendant departed from standards of medical care by failing to properly perform the caesarian section delivery of the infant claimant. This is exactly the same issue which was decided against the claimants in the Supreme Court action and in favor of the physicians who delivered the infant claimant. The claimants have failed to appear or to even attempt to raise a triable issue to overcome the doctrine of collateral estoppel. Thus, claimants are barred from relitigating herein the issue of malpractice as against the physicians who delivered the infant cllaimant, Drs. Yu and Abdelmalek, as that issue was decided against them in the State Supreme Court action.

Here, I would reach the same conclusion as to Downstate as reached in Supreme Court in favor of the physicians, i.e., that defendant Downstate has established its entitlement to summary judgment as a matter of law. In support of its motion, defendant proffered the expert affirmation of Marc Engelbert, M.D., dated March 3, 2020. Dr. Engelbert is Board Certified in obstetrics and gynecology. It was Dr. Engelbert's opinion, within a reasonable degree of medical certainty, that the defendant and its agents, employees and staff acted within accepted standards of practice at all times in their care of the claimants at Downstate, that there was no evidence of a departure from accepted standards of care and that none of the alleged injuries were causally related to the care and treatment the claimants received at Downstate (see Dr. Engelbert's expert affirmation, Defendant's Exhibit A). As in the Supreme Court action, the claimants herein failed to oppose defendant's motion. Thus, whether the alleged malpractice in the present claim is based on the actions of the physicians (which claimants are precluded from rearguing herein) or on the actions of the Downstate staff, defendant has established its entitlement to summary judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

Based on the foregoing, defendant's motion no. M-95432 is granted in its entirety and claim no. 126876 is dismissed.

July 31, 2020

Buffalo, New York


Judge of the Court of Claims

The following were read and considered by the Court:

1. Notice of motion and supporting affirmations of Assistant Attorney General Kathleen M. Gizzo dated April 17, 2020 and of Marc Engelbert, M.D. dated March 3, 2020 (Exhibit A), and the remaining exhibits B-N).