Bender v. Jamaica Hospital

46 A.D.2d 897, 361 N.Y.S.2d 937, 1974 N.Y. App. Div. LEXIS 3336

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 1974
• Status: Published

Opinion

In a medical malpractice action, all the individual defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County, dated September 28, 1973, as granted the branch of plaintiffs’ motion that sought to strike the first affirmative defense contained in said defendants’ answer. Order reversed insofar as appealed from, without costs, and above-mentioned branch of plaintiffs’ motion denied. The individual defendants, appearing by the Corporation Counsel of the City of New York, interposed an answer to the complaint containing three affirmative defenses, the first of which asserted that plaintiffs had failed to comply with the provisions of section 50-d of the General Municipal Law in that they neglected to file a notice of claim. Plaintiffs moved, inter alia, to strike that defense and Special Term granted that relief, finding that a notice of claim which had been served upon the City of New York (as claimed in a companion action decided herewith [Bender v. New York City Health & Hosp. Gorp.']) satisfied the notice requirements in the instant action. Special Term was correct in finding section 50-d of the General Municipal Law applicable to the case at bar. However, in accordance with our holding in the companion case that notice to the city is not notice to the Health and Hospitals Corporation and since appellants were employed by that corporation (see New York City Health and Hospitals Corporation Act, § 6 [L. 1969, eh. 1016]), the first affirmative defensé contained in their answer should stand. Latham, Acting P. J., Shapiro, Christ, Benjamin and Munder, JJ., concur.