Waiters v. New York City Health & Hospitals Corp.

77 A.D.2d 871, 431 N.Y.S.2d 56, 1980 N.Y. App. Div. LEXIS 12663

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 4, 1980
• Status: Published

Opinion

In a wrongful death action predicated upon medical malpractice, defendant appeals from an order of the Supreme Court, Kings County, dated September 11, 1979, which (1) denied its motion to dismiss the complaint insofar as it sought to recover damages for conscious pain and suffering and for loss of services, and (2) granted plaintiff’s cross motion for leave to serve and file a late notice of claim. The appeal brings up for review so much of a further order of the same court, dated April 28, 1980, as, upon reargument, adhered to the original determination. Appeal from the order dated September 11, 1979, dismissed as academic, without costs or disbursements. That order was superseded by the order of April 28, 1980, which granted reargument. Order dated April 28, 1980 reversed insofar as reviewed, on the law, without costs or disbursements, the cause of action for loss of services is dismissed and the matter is remitted to Special Term for further proceedings consistent herewith. Plaintiff concedes he does not have a viable cause of action for loss of services. As to the cause of action for conscious pain and suffering, the record is inadequate to enable the court to make a determination as to whether defendant should be estopped from asserting the failure to file a timely notice of claim. A hearing must be conducted to fully explore the exact nature of, and the reasons underlying, the delays which both parties seem responsible for. Lazer, J. P., Gibbons, Martuscello and O’Connor, JJ., concur.