Kaminsky v. State

• Decision Date: 04 October 1999
• Citation: 696 N.Y.S.2d 205
• Parties: Sylvia KAMINSKY, etc., appellant, v. STATE of New York, respondent.
• Court: New York Supreme Court — Appellate Division

Page 205

696 N.Y.S.2d 205

Sylvia KAMINSKY, etc., appellant, v. STATE of New York, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 4, 1999.

Debevoise & Plimpton, New York, N.Y. (Mark W. Friedman and Anne L. Nichol of counsel; Elizabeth Murphey on the brief), for appellant.

Eliot L. Spitzer, Attorney-General, New York, N.Y. (Peter H. Schiff and Julie M. Sheridan of counsel), for respondent.

SONDRA MILLER, J.P., THOMAS R. SULLIVAN, MYRIAM J. ALTMAN and LEO F. McGINITY, JJ.

MEMORANDUM BY THE COURT.

In a claim, inter alia, to recover damages for wrongful death, the claimant appeals from a judgment of the Court of Claims (Ruderman, J.), entered June 9, 1998, which, after a nonjury trial and upon the granting of the defendant's motion to dismiss the claim, dismissed the claim.

ORDERED that the judgment is affirmed, with costs.

Contrary to the claimant's contention, we find that the evidence adduced at trial supports the court's factual determination that the claimant's decedent, an inmate at Green Haven Correctional Facility, received adequate medical attention and that any failure to diagnose was not a proximate cause of his death (see, Marchione v. State of New York, 194 A.D.2d 851, 598 N.Y.S.2d 592; Connolly v. Pastore, 203 A.D.2d 412, 610 N.Y.S.2d 560). The claimant demonstrated that the decedent had exhibited the symptoms of Acquired Immune Deficiency Syndrome (hereinafter AIDS). The claimant contends that an earlier diagnosis would have allowed a preventive course of medication against pneumocystis carinii pneumonia (hereinafter PCP), the immediate cause of the decedent's death. This contention was contradicted by the testimony of the defendant's experts to the effect that the abrupt onset of PCP in the decedent, a 57-year-old man suffering, inter alia, from heart disease, hepatitis, cirrhosis of the liver, and diabetes, was not treatable given the amount of time needed for the drug therapy used to combat PCP to take effect.