Stanfield v. Nohejl

182 A.D.2d 1138, 586 N.Y.S.2d 765, 1992 N.Y. App. Div. LEXIS 7055

Opinion

Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendant Vaddadi’s motion to dismiss plaintiffs’ complaint based upon their failure to comply with General Municipal Law §§ 50-e and 50-i. On this record, it is uncontroverted that, at the time of the surgical procedure alleged in the complaint, defendant was a resident physician at the Erie County Medical Center and as such was entitled to the protection of General Municipal Law § 50-d. Inasmuch as plaintiffs failed to file a notice of claim pursuant to General Municipal Law § 50-e and failed to commence this action within the 1 year and 90 day limitations period provided for in General Municipal Law § 50-i, their complaint against defendant must be dismissed (see, Mort v Andersen, 181 AD2d 1080). (Appeal from Order of Supreme Court, Erie County, Wolf, Jr., J. — Dismiss Complaint.) Present — Denman, P. J., Green, Balio, Boehm and Fallon, JJ.