Simmons v. Crystal

Appellate Division of the Supreme Court of New York

Simmons v. Crystal

301 A.D.2d 401, 752 N.Y.S.2d 861, 2003 N.Y. App. Div. LEXIS 156

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 14, 2003

StatusPublished

This text of 301 A.D.2d 401 (Simmons v. Crystal) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Simmons v. Crystal, 301 A.D.2d 401, 752 N.Y.S.2d 861, 2003 N.Y. App. Div. LEXIS 156 (N.Y. Ct. App. 2003).

Pincite

Opinion

—Order, Supreme Court, Bronx County (Stanley Green, J.), entered December 12, 2001, which, insofar as appealed from, denied defendant-appellant doctor’s motion to dismiss the complaint for failure to serve a notice of claim or to commence the action within a year and 90 days of the accrual of plaintiffs cause of action for medical malpractice, unanimously modified, on the law and the facts, to grant leave to renew the motion upon submission of additional evidence of appellant’s employment by North Central Bronx Hospital, and otherwise affirmed, without costs.

An issue of fact exists as to whether appellant was acting within the scope of his employment at North Central Bronx Hospital, a facility of the New York City Health and Hospitals Corporation, at the time of the alleged malpractice. However, we modify so as to grant leave to renew since this issue of fact might well be resolved by additional evidence of appellant’s employment, including, in particular, the entire affiliation agreement between Health and Hospitals Corporation and Montefiore Medical Center, on whose latter behalf plaintiffs claim appellant was or appeared to be acting. Concur— Nardelli, J.P., Rosenberger, Ellerin, Williams and Lerner, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Order, Supreme Court, Bronx County (Stanley Green, J.), entered December 12, 2001, which, insofar as appealed from, denied defendant-appellant doctor’s motion to dismiss the complaint for failure to serve a notice of claim or to commence the action within a year and 90 days of the accrual of plaintiffs cause of action for medical malpractice, unanimously modified, on the law and the facts, to grant leave to renew the motion upon submission of additional evidence of appellant’s employment by North Central Bronx Hospital, and otherwise affirmed, without costs.

An issue of fact exists as to whether appellant was acting within the scope of his employment at North Central Bronx Hospital, a facility of the New York City Health and Hospitals Corporation, at the time of the alleged malpractice. However, we modify so as to grant leave to renew since this issue of fact might well be resolved by additional evidence of appellant’s employment, including, in particular, the entire affiliation agreement between Health and Hospitals Corporation and Montefiore Medical Center, on whose latter behalf plaintiffs claim appellant was or appeared to be acting. Concur— Nardelli, J.P., Rosenberger, Ellerin, Williams and Lerner, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

301 A.D.2d 401, 752 N.Y.S.2d 861, 2003 N.Y. App. Div. LEXIS 156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-v-crystal-nyappdiv-2003.