Vazquez v. New York City Health & Hospitals Corp.

Appellate Division of the Supreme Court of New York

Vazquez v. New York City Health & Hospitals Corp.

279 A.D.2d 368, 720 N.Y.S.2d 20, 2001 N.Y. App. Div. LEXIS 646

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

DecidedJanuary 23, 2001

StatusPublished

Cited by1 cases

This text of 279 A.D.2d 368 (Vazquez v. New York City Health & Hospitals Corp.) 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

Vazquez v. New York City Health & Hospitals Corp., 279 A.D.2d 368, 720 N.Y.S.2d 20, 2001 N.Y. App. Div. LEXIS 646 (N.Y. Ct. App. 2001).

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Opinion

—Judgment, Supreme Court, New York County (Stanley Sklar, J.), entered January 14, 2000, which dismissed plaintiffs complaint for wrongful death, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered September 24, 1999, which, inter alia, granted defendants’ motion pursuant to CPLR 3211 to dismiss the complaint for failure to file a timely notice of claim, unanimously dismissed, without costs, as subsumed in the appeal from the ensuing January 14, 2000 judgment.

It is undisputed that plaintiff, in this medical malpractice action for wrongful death against the City and the Health and Hospitals Corporation (HHC), never filed a notice of claim for wrongful death in accordance with the requirements of McKinney’s Unconsolidated Laws of New York § 7401 (New York [369]*369City Health and Hospitals Corporation Act § 20 [L 1969, ch 1016, § 1, as amended]) and General Municipal Law §§ 50-e and 50-i. To remedy this otherwise fatal defect, plaintiff seeks to amend the notice of claim filed by the decedent on August 4, 1994, wherein the latter alleged that HHC had been negligent in failing to diagnose and treat her ovarian tumor. In this connection, plaintiff contends that the decedent’s notice of claim was timely since the statutorily allotted 90-day period for filing a notice of claim was tolled by reason of the decedent’s continuous treatment by defendant Health and Hospitals Corporation (see, Young v New York City Health & Hosps. Corp., 91 NY2d 291, 295). However, the decedent’s ongoing general relationship with the clinic for routine periodic health examinations was insufficient to satisfy the continuous treatment doctrine’s requirement that there be continuous treatment of the condition upon which the allegations of medical malpractice are based (see, Young v New York City Health & Hosps. Corp., supra, at 296). Concur — Sullivan, P. J., Rosenberger, Tom, Ellerin and Friedman, JJ.

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—Judgment, Supreme Court, New York County (Stanley Sklar, J.), entered January 14, 2000, which dismissed plaintiffs complaint for wrongful death, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered September 24, 1999, which, inter alia, granted defendants’ motion pursuant to CPLR 3211 to dismiss the complaint for failure to file a timely notice of claim, unanimously dismissed, without costs, as subsumed in the appeal from the ensuing January 14, 2000 judgment.

It is undisputed that plaintiff, in this medical malpractice action for wrongful death against the City and the Health and Hospitals Corporation (HHC), never filed a notice of claim for wrongful death in accordance with the requirements of McKinney’s Unconsolidated Laws of New York § 7401 (New York [369]*369City Health and Hospitals Corporation Act § 20 [L 1969, ch 1016, § 1, as amended]) and General Municipal Law §§ 50-e and 50-i. To remedy this otherwise fatal defect, plaintiff seeks to amend the notice of claim filed by the decedent on August 4, 1994, wherein the latter alleged that HHC had been negligent in failing to diagnose and treat her ovarian tumor. In this connection, plaintiff contends that the decedent’s notice of claim was timely since the statutorily allotted 90-day period for filing a notice of claim was tolled by reason of the decedent’s continuous treatment by defendant Health and Hospitals Corporation (see, Young v New York City Health & Hosps. Corp., 91 NY2d 291, 295). However, the decedent’s ongoing general relationship with the clinic for routine periodic health examinations was insufficient to satisfy the continuous treatment doctrine’s requirement that there be continuous treatment of the condition upon which the allegations of medical malpractice are based (see, Young v New York City Health & Hosps. Corp., supra, at 296). Concur — Sullivan, P. J., Rosenberger, Tom, Ellerin and Friedman, JJ.

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Bluebook (online)

279 A.D.2d 368, 720 N.Y.S.2d 20, 2001 N.Y. App. Div. LEXIS 646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vazquez-v-new-york-city-health-hospitals-corp-nyappdiv-2001.

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