Castillo v. Zimmerly

260 A.D.2d 243, 688 N.Y.S.2d 148, 1999 N.Y. App. Div. LEXIS 3956

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1999
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Howard Silver, J.), entered on or about February 3, 1998, which granted plaintiffs motion to dismiss defendants-appellants’ affirmative defense premised on plaintiffs alleged noncompliance with General Municipal Law § 50-e, and denied defendants-appellants’ cross motion to dismiss the complaint for plaintiffs failure to satisfy the conditions set forth in General Municipal Law § 50-e or, alternatively, for a change of venue, and order, same court and Justice, entered June 3, 1998, which, to the extent appealable, denied defendants-appellants’ motion to renew, unanimously affirmed, with costs.

Defendant-appellant physicians did not demonstrate on their original motion that Southside Hospital was a public institution maintained in whole or in part by the County of Suffolk, and, accordingly, failed to establish that plaintiff was required to file a notice of claim as a condition of maintaining this malpractice action against the hospital and physicians who practiced there (see, General Municipal Law § 50-d [1], [2]; cf., Norr v Spiegler, 56 AD2d 389, affd 44 NY2d 809).

Venue was properly set in Bronx County and defendants-appellants failed to justify their request for the action’s removal by establishing that material witnesses would be inconvenienced by a trial held in the Bronx (see, Cardona v Aggressive Heating, 180 AD2d 572).

The motion to renew was properly denied since it did not present new or additional facts unknown to defendant-appellant physicians at the time of their original motion and. no valid excuse was presented for the failure to include the “new” matter on the original motion (see, 300 W. Realty Co. v City of New York, 99 AD2d 708, appeal dismissed 63 NY2d 952). Concur — Nardelli, J. P., Tom, Lerner and Mazzarelli, JJ.