Defendant State of New York moves this Court (1) for leave to amend its answer to add the affirmative defense of collateral estoppel under CPLR § 3025, and (2) to grant it summary judgment dismissing the claim pursuant to CPLR §§ 3211(a)(5) and 3212. For reasons set forth below, defendant's motion is granted in its entirety.

The matters at issue in this case were originally placed before the Court as Claim No. 111261, filed with the Court of Claims on September 17, 2005, and which was ultimately [*2]superseded by the present claim, filed on May 9, 2006.^[FN2] Claimant Elza Perez' allegations, as set forth in her Bill of Particulars ^[FN3] and the affirmation of counsel filed in opposition to this motion, are as follows: At 1:00 PM on May 24, 2005, Ms. Perez came to the offices of Downstate Internal Associates ("DIMA") at SUNY Downstate Medical Center for a medical appointment with Dr. Nabil El- Sharif. Dr. El-Sharif was not available, so claimant was assigned to be seen by Dr. Jason Lazar, another member of DIMA. Claimant used a stool in the office to ascend on to the examination table. The stool had a hole in it, and Perez fell, sustaining injuries (Bill of Particulars ¶ 3; Pager Aff. in Opp. ¶ 18). Claimant also asserts that Diana Berig, a physician's assistant on the scene at the time, failed to properly assist Perez (Bill of Particulars ¶ 3; Pager Aff. in Opp. ¶ 21).

The present claim sets forth four causes of action, sounding in medical malpractice, negligent supervision, negligence (including an allegation of negligent maintenance of facilities), and failure to obtain informed consent.

On August 2, 2005, claimant commenced a separate action in New York State Supreme Court, Kings County, against DIMA, Lazar and Berig (the "Supreme Court defendants"), captioned Perez v Downstate Internal Medical Assocs., Supreme Court, Kings County Index Number 23789/05 (August 2, 2005) (hereinafter "Perez v DIMA"). The complaint in that case stated the same four causes of action as in the claim before this Court. While the complaint differs from the present claim as to certain boilerplate language, and in the description of the defendants, the allegations as to the manner in which claimant was injured and the elements of each cause of action are identical in all material respects.^[FN4] [*3]

Defendants in the Supreme Court action moved for summary judgment by two separate motions. The motion brought by DIMA and Lazar was granted by order dated March 2, 2009, which read in its entirety: "It is hereby ordered and adjudged that summary judgment is granted to Jason Lazar, M.D. and Downstate Internal Medicine Associates, with no opposition by plaintiff" (Kelley Aff. ex. N). A second order dated April 7, 2009 granted Berig's motion, stating that "[p]laintiff has failed to raise a triable issue of fact" (Kelley Aff. Ex. O).

Claimant appealed these rulings to the Appellate Division, Second Department, which unanimously affirmed (Kelley Aff. Ex. P). In pertinent part, the decision stated as follows:

"In connection with the plaintiff's cause of action sounding in negligence, on their separate motions for summary judgment dismissing the complaint insofar as asserted against them, the defendants established, prima facie, that they neither created nor had actual or constructive notice of the defective condition that allegedly caused the plaintiff to fall and sustain injuries . . . In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiffs' remaining contentions are without merit." Perez v Downstate Internal Medicine Assoc. (76 AD3d 551, 552 [2d Dept 2010] [citations omitted]).

Claimant filed a Note of Issue in this action on December 30, 2010, and on April 1, 2011, defendant filed the present motion. In response, claimant has submitted an affirmation by her counsel, arguing that the prior rulings do not bar the present action. Claimant contends, inter alia, that the holding of the Appellate Division solely applied to the named defendants in that action, and neither demonstrates the absence of an issue of material fact in regard to defendant State of New York in this case, nor addressed other issues relevant to such determination.

As an initial matter, defendant seeks to amend its answer to include the affirmative defense of collateral estoppel based on the Supreme Court action (Kelley Aff. Ex. T, Proposed [*4]Amended Verified Answer).

Leave to amend is to be "freely given upon such terms as may be just" (CPLR § 3205[b]). In particular, amendment should be allowed where the opposing party will be neither prejudiced nor surprised, and where the amendment is not devoid of merit (see Lucido v Mancuso, 49 AD3d 220, 222 [2d Dept 2008]; see also County of Nassau v State of New York, 190 Misc 2d 659, 661 [Ct Cl 2002], affd 1AD3d 732 [3d Dept 2003] ["[i]n the absence of proof of significant prejudice or surprise, motions to amend an answer to assert collateral estoppel are favorably received"]).

Here, no unwarranted surprise or prejudice would accrue to claimant by allowing the proffered amendment. Claimant brought parallel actions in Supreme Court and the Court of Claims arising out of the same underlying injury, and she was therefore on notice that defendant could assert the preclusive effect of a decision in one case to its advantage in the other. Further, defendant could not have mitigated any prejudice that might result by raising this defense in its original pleading; in the absence of a final determination in the Supreme Court action, the defense was simply not available at that time (see Dawley v McCumber, 45 AD3d 1399, 1400 [4th Dept 2007], quoting Ward v City of Schenectady, 204 AD2d 779, 781 [3d Dept 1994] [defining prejudice as loss of a special right, change in position, or significant trouble or expense that could have been avoided if the original pleading had set forth the proposed amendment]; accord Barbour v Hospital for Special Surgery, 169 AD2d 385, 386 [1st Dept 1991]; see also Kettler v State of New York, UID No. 2011-018-207, Claim No. 106026, Motion No. M-79155, Fitzpatrick, J. [Feb. 24, 2011] [allowing amendment to answer for assertion of collateral estoppel defense; noting that defense could not have been raised before conclusion of parallel Supreme Court action]).

In sum, defendant has a proper basis to amend its answer and claimant has failed to demonstrate that she suffered any prejudice as a result of the affirmative defense not having been raised in the original answer (see Barbour v Hospital for Special Surgery, 169 AD2d 385, 386 [1st Dept 1991]). Further, as addressed below, the proffered defense is meritorious. For these reasons, the defendant's motion to amend its answer is granted.

Based upon the affirmative defense of collateral estoppel, defendant also moves for an order granting it summary judgment dismissing the claim. In order for defendant to prevail on a motion for summary judgment, it must make a prima facie showing by tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Once this showing has been made, the burden shifts to claimant to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman, 49 NY2d at 562).^[FN5] [*5]

The doctrine of collateral estoppel bars a party from raising any issues he or she has unsuccessfully litigated in a prior proceeding. The doctrine applies where an issue raised in a later action is identical to an issue (1) that was raised, necessarily decided and material in a prior action; and (2) as to which claimant had a full and fair opportunity to litigate in the earlier proceeding (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999], citing Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). The burden is on the party asserting collateral estoppel to prove the first element, while the opponent has the burden of showing the second (id.; Kaufman v Eli Lilly & Co., 65 NY2d 449, 456 [1985]).Once the movant makes a prima facie showing that the issues in the two proceedings were identical, the burden shifts to the non-moving party to show a triable issue of fact as to the identity of issues, or its opportunity to fairly litigate them in the prior proceeding (see Matter of Gowrie v Squires, 71 AD3d 1023, 1024 [2d Dept 2010]; Matter of Ajay P. 60 AD3d 681, 683 [2d Dept 2009]). Collateral estoppel is not a rigid doctrine, and whether its use is appropriate must be determined on a case-by-cases basis, with the "over-all fairness" of its application the key touchstone (see Sucher v Kutscher's Country Cub, 113 AD2d 928, 931 [2d Dept 1985]).

The first prong of the inquiry set forth above is met, as to a particular issue, if such issue has "been properly raised by the pleadings or otherwise placed in issue and actually determined in the prior proceeding" (Matter of Halyalkar Board of Regents of the State of NY, 72 NY2d 261, 268 [1988]). A grant of summary judgment on a particular issue constitutes a determination on the merits, and gives rise to issue preclusion to the same degree as a favorable resolution at trial (see QFI, Inc. v Shirley, 60 AD3d 656, 657 [2d Dept 2009]; Gollel v Nassar, 206 AD2d 835, 836 [4th Dept 1994], lv denied 85 NY2d 802 [1995]; Boorman v Deutsch, 152 AD2d 48, 53 [1st Dept 1989], lv dismissed 26 NY2d 889 [1990]). That is the case even where the non-moving party has not opposed the motion (see QFI, Inc., 60 AD3d at 657 ["it is clear that the award of summary judgment . . . though made after the plaintiff failed to oppose the motion seeking that relief, was on the merits"]; Vinci v Northside Partnership, 250 AD2d 965, 965 [3d Dept 1998] ["(a)n award of summary judgment, even when based upon a party's failure to register any opposition to an application for such relief, is generally deemed a resolution on the merits"]).

In the present action, the defendant has demonstrated prima facie the identity of issues by showing that the pleadings in the Supreme Court action and those in the present case are materially the same, and that the appellate court rejected each of the causes of action brought by plaintiff in the prior litigation. Claimant has, in response, failed to proffer any evidence [*6]demonstrating that it did not have a full and fair opportunity to contest the Supreme Court proceedings. Further, there is no consideration of fairness or other factor that militates against reliance on collateral estoppel in this case. Claimant is represented by the same counsel as in the Supreme Court action, and such counsel points to no new evidence which would warrant a different outcome in this case (see Sucher, 113 AD2d at 931 [considerations of fairness weigh against collateral estoppel when new attorney represents claimant, and record contains "new evidence, not available at the time of the prior proceeding"]). Indeed, she has presented materially identical claims in both proceedings. Under these circumstances, and for the reasons stated above, the doctrine of collateral estoppel applies.

The invocation of collateral estoppel, in turn, provides ample basis for defendant to meet its prima facie case for summary judgment (see Hibbert v Avwontom, 35 AD3d 813, 814 [2d Dept 2006] [defendant's invocation of collateral estoppel effect of prior award sufficient to meet prima facie burden on summary judgment]; Rakowski v Weber, 264 AD2d 831, 831-832 [2d Dept 1999] [same]). In a negligence action, that burden may be met through a showing that defendant lacked notice of the defect (see Meyer v Pathmark Stores, 290 AD2d 423, 423 [2d Dept 2002], citing Goldman v Waldbaum, 248 AD2d 436 [2d Dept 1998] [defendant's showing of absence of notice meets its prima facie burden on summary judgment motion to dismiss negligence claim]). Here, the preclusive impact of the appellate court's finding that the State's employees and on-site medical practice neither had notice of nor created the defect amply meets the State's prima facie burden (see Bronxville Palmer v State of New York, 18 NY2d 560, 563 [1966] [judgment on behalf of contractors collaterally estopped parallel suit against State; "[i]f [contractors] were adjudicated to have committed no actionable wrong, this would inure to the benefit of the State were the same damages later claimed for the same purported wrong"]; Rodenheiser v State of New York, 47 AD3d 788 [2d Dept 2008] [verdict on malpractice claim for State doctor on issues of medical necessity and informed consent collaterally estopped claimant's subsequent action against State]; Becker v State of New York, 274 AD2d 532 [2d Dept 2000] [determination that State employee not negligent in prior litigation with claimant collaterally estopped negligence claim by claimant against the State]; Bechtel v State of New York, 105 AD2d 677, 677 [2d Dept 1984] [federal court ruling in favor of contractors in negligence action compelled Court of Claims judgment in State's favor, as State's liability was "wholly derivative" from contractor]; cf. Scialdone v Shah, 197 AD2d 567, 568 [2d Dept 1993], lv denied 83 NY2d 754 [1994] [judgment for State in malpractice action mandated grant of summary judgment for State's employee and contractor on collateral estoppel ground]; Wheeler v Village of Saugerties, 216 AD2d 733 [3d Dept 1995] [denial of negligence claim against State collaterally estopped claim against State's contractor arising out of same incident]). That is particularly the case in light of the numerous statements made in the affirmation of claimant's counsel in the Supreme Court action, cited in defendant's present filings, that only the Supreme Court defendants had access to and responsibility for the stool at the time the accident occurred (Kelley Reply Aff. ¶ 31).

In response to the State's prima facie showing, claimant has failed to adduce any evidence showing a disputed issue of material fact. Claimant maintains that the Appellate Division's decision is limited to "two individuals and a private entity," and the State "employs many more persons and has completely different duties, responsibilities and functions" than the Supreme [*7]Court Defendants (Pager Aff. in Opp. ¶¶ 30, 34). Claimant's filings do not disclose, however, who else might have received notice on the State's behalf, much less present admissible evidence for such notice.^[FN6] Claimant's assertion is therefore mere speculation, and as such is insufficient to resist summary judgment (see Leggio v Gearhart, 294 AD2d 543, 544 [2d Dept 2002] [opposition to summary judgment must be based on "admissible evidence, not mere conjecture, suspicion, or speculation"]).

Moreover, constructive notice is generally present when a dangerous condition is "visible and apparent and it . . . exist[s] for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). Since constructive notice thus arises out of the nature of the defect itself, it is not apparent how the State could be charged with such notice, if the medical practice that worked in the room is not. In any case, claimant identified no other State employee or entity which she contends had either actual or constructive notice besides the Supreme Court defendants, and cites no admissible evidence showing that the State should be viewed differently than the Supreme Court defendants in regard to such notice.

Claimant also argues that she may proceed under a theory of res ipsa loquitur, regardless of the prior rulings in her Supreme Court action, since a showing of notice is not requiredunder this doctrine (see Levinstim v Parker, 27 AD3d 698, 700 [2d Dept 2006] ["notice would not stand as a bar to the plaintiff's recovery if res ipsa loquitur applied"]; Smith v Moore, 227 AD2d 854, 856 [3d Dept 1996] ["(n)otice has not been determined to be a prerequisite in res ipsa loquitur cases, where . . . it was (defendant's) duty to maintain and inspect the instrumentality and he had exclusive control over it"]).^[FN7]

Claimant cannot, however, escape the impact of collateral estoppel by invoking this doctrine. Res ipsa loquitur is not a separate theory of recovery, but a "common-sense application of the probative value of circumstantial evidence" (Abbott v Page Airways, 23 NY2d 502, 512 [*8][1969] [citations omitted]). Claimant has not identified any evidence in this proceeding that was not before the court in the prior action when summary judgment was granted in defendants' favor. By invoking res ipsa loquitur here, claimant is arguing that this Court may find that the same evidence which the Appellate Division found insufficient to create an issue of material fact, should nonetheless give rise to an inference of negligence in this proceeding, merely because claimant has invoked a legal doctrine here that she failed to cite in the earlier action. But claimant cannot avoid the preclusive effect of the prior rulings just by adding a new legal argument (see Lippman v State of New York, 83 AD2d 700, 700-701 [3d Dept 1981] [rejecting defendant's argument it should not be subject to collateral estoppel because it failed to fully litigate issue in earlier case]; Boorman, 152 AD2d at 54 ["Nor should the courts permit litigation of an issue which a party has been afforded a full and fair opportunity to contest in another forum merely because he was derelict in his obligation to pursue that litigation with diligence"]). To the contrary, an issue was determined in the prior action, for collateral estoppel purposes, if it is "pertinent to the subject of the controversy as defined" in her pleadings, including her bill of particulars (see Wheeler, 216 AD2d at 734 [citations and internal quotations omitted]). As claimant's pleadings are materially identical to those in the prior proceeding, her efforts to have the Court construe the same evidence and allegations so as reach a different result are barred by collateral estoppel.

In any event, claimant's own admissions preclude the invocation of res ipsa loquitur here. For the doctrine to apply, claimant must show an issue of fact as to whether the State had "control of sufficient exclusivity to fairly rule out the chance that the alleged defect was caused by some agency other than defendant's negligence" (Molina v State of New York, 46 AD3d 642, 643 [2d Dept 2007] [citations and internal quotations omitted]). Claimant contends that this is the case here, because the State "provided [the] examination table, which was placed in a small examination room within its hospital and directed Ms. Perez onto it" (Pager Aff. in Opp. ¶ 48). Claimant does not cite any admissible evidence in support of such assertion (see Zuckerman, 49 NY2d at 563 [summary judgment cannot be defeated by affidavit of attorney without personal knowledge]), and in any case, her characterization of the evidence in the Supreme Court action was that it supports the opposite premise: that DIMA had control over this very instrumentality ^[FN8] (Kelley Reply Ex. B, Aff. in Opp. to Summary Judgment Motion in Perez v DIMA ¶¶ 119-120 [citing evidence that examination tables were only used by DIMA]; cf. Kelley Aff. Ex. H, Complaint in Perez v DIMA ¶ 8 ["At all times mentioned herein, Defendant Downstate Internal Medicine Associates owned, operated, controlled and managed a facility . .. for the care of the sick . . . located at 450 Clarkson Avenue, Brooklyn , NY . . . and which held itself out to the public as furnishing treatment facilities where patients, including Plaintiff Elza Perez, could be treated for various ailments"]). Thus, claimant's own affirmation, and the unrefuted evidence in [*9]the prior litigation, demonstrate that exclusivity is not present in this case.^[FN9]

Claimant argues that various other issues were not addressed in the Supreme Court action, including whether Berig's actions or failures to act caused claimant's injury (Pager Aff. in Opp. ¶¶ 109-117). But so long as defendant can establish that it neither created nor had notice of the defect, no finding of negligence may be made against the State, regardless of what the proof may show as to causation (see Gordon, 67 NY2d at 838 [argument about causation not relevant; the "defect in plaintiff's case . . . is not an inability to prove the causation element of his fall but the lack of evidence establishing constructive notice of the particular condition that caused his fall"]). In any event, Supreme Court had these very allegations before it when it granted Berig summary judgment, as did the Appellate Division when it affirmed that decision.

Claimant also argues that "[n]either the Supreme Court, nor the Appellate Division addressed the issues of negligent maintenance of the premises," and therefore she may proceed on its negligent maintenance claim (Pager Aff. in Opp. ¶ 87). Invoking "negligent maintenance," however, does not relieve claimant of the ultimate burden of showing that the State either created the defect, or had actual or constructive notice thereof (see Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994] [granting defendant judgment on negligent maintenance claim; "liability could be predicated only on failure of defendants to remedy the danger . . . after actual or constructive notice of the condition"]; Walker v City of New York, 82 AD3d 966, 967 [2d Dept 2011] [granting defendants summary judgment on negligent maintenance claim when they "established, prima facie" the absence of actual or constructive notice, and plaintiff failed to raise an issue of material fact]; Applegate v Long Is. Power Auth., 53 AD3d 515, 516 [2d Dept 2008] [affirming grant of summary judgment on negligent maintenance claim, where "defendants established their entitlement to judgment as a matter of law by demonstrating that they had neither created nor had actual or constructive notice of the latent defect . . . ."]; Richardson v State of New York, UID No. 2007-031-519, Claim No. 112631, Minarik, J. [Dec. 3, 2008] [granting defendant judgment on claim of negligently maintained window grate; claimant failed to show defendant created or had notice of defect, which is necessary "to establish liability in this type of case"]). Moreover, while claimant contends that "[m]aintenance, as well as the inspections and repair, of the premises (and the examination table) have always been alleged and admitted to be the responsibility of the State, not the three defendants named in the Supreme Court action" (Pager Aff. in Opp. ¶ 86), she cites no evidence for this assertion.^[FN10] Indeed, in the [*10]Supreme Court action, claimant stated just the opposite: that Lazar and DIMA were "responsible for . . . the defective equipment in the room" (Kelley Reply Aff. Ex. B, Aff. in Opp. to Summary Judgment Motion in Perez v DIMA ¶ 124).

In short, however claimant's negligence claim is characterized, she still faces the problem described above, i.e., the prior rulings are preclusive as to the finding that the only individuals identified by claimant who worked on the scene had neither notice of, nor created, the defect at issue, and claimant fails to point to any admissible evidence that raises an issue of material fact that the State nevertheless had notice of or created the defect. Instead, claimant merely advances theories based on speculation and conjecture that are insufficient to defeat a motion for summary judgment. Under these circumstances, she cannot escape summary judgment by styling her claim as one for "negligent maintenance."

Claimant also argues that her negligent hiring and retention claim was not addressed in the prior action. However, the prior ruling dismissing the underlying tort actions against Berig, and the concomitant absence of a viable tort claim against her, bar claimant from proceeding on any such cause of action (see Cotter v Summit Sec. Servs., 14 AD3d 475, 476 [2d Dept 2005] [dismissing negligent hiring claim when "there was no evidence that [the employee] committed the torts upon which the [negligent hiring] cause of action was based"]). Moreover, it is well-settled that where an employee is acting within the scope of his or her employment, the employer is potentially liable under the theory of respondeat superior and no claim lies against the employer for negligent hiring or retention (see Rossetti v Board of Educ. of Schalmont Cent. School Dist., 277 AD2d 668 [3d Dept 2000], citing Eifert v Bush, 27 AD2d 950 [2d Dept 1967], affd 22 NY2d 681 [1968]; Karoon v New York City Tr. Auth., 241 AD2d 323, 324 [1st Dept 1997]). To determine whether an employee acted within the scope of his or her employment, the inquiry is "whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions" (Riviello v Waldron, 47 NY2d 297, 302 [1979]). Defendant proffers the deposition testimony of claimant, Berig, and Lazar (Kelley Aff. Exs. J, K, L), which clearly establishes that at the time of injury, Berig was in the examination room with claimant performing the duties of a physician's assistant, i.e. acting within the scope of her employment. In opposition, claimant fails to offer any relevant evidence otherwise.^[FN11]

Even if claimant could show that Berig was arguably acting outside the scope of her employment, she simply fails to present any evidence that the employer should have known of Berig's purported "propensity for the conduct which caused the injury," which is also necessary to state a claim for negligent hiring (see Jackson v New York Univ. Downtown Hosp., 69 AD3d 801, 801 [2d Dept 2010] [citation and internal quotations omitted]; see also Yildiz v PJ Food Serv., Inc., 82 AD3d 971, 972 [2d Dept 2011] [citations omitted] [granting summary judgment for defendant on negligent hiring claim when "plaintiff presented no evidence of a required element of such causes of action, i.e., that the employer knew or should have known of the employee's propensity for the conduct resulting in the injury"]). [*11]

For all these reasons, defendant is entitled to summary judgment on claimant's negligent hiring claim.

In sum, claimant has therefore failed to demonstrate a disputed issue of material fact on any of her causes of action, and summary judgment is warranted.^[FN12]

In view of the foregoing, it is

ORDERED that motion no. M-79714 be granted and that Claim No. 112317 be dismissed.

Albany, New York

August 5, 2011

DAVID A. WEINSTEIN

Judge of the Court of Claims

Papers Considered

1) Defendant's Notice of Motion and Affirmation in Support of Motion for Summary Judgment, and annexed Exhibits.

2) Claimant's Affirmation in Opposition.

3) Defendant's Reply Affirmation, and annexed Exhibits. [*12]