| Wade v New York City Health & Hosps. Corp. |
| 2009 NY Slip Op 01108 [59 AD3d 528] |
| February 10, 2009 |
| Appellate Division, Second Department |
| Sharita Wade et al., Appellants, v New York City Healthand Hospitals Corporation et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow andElizabeth S. Natrella of counsel), for respondents.
In an action to recover damages for negligence and medical malpractice, etc., the plaintiffsappeal from an order of the Supreme Court, Queens County (Elliot, J.), dated June 12, 2007,which, in effect, granted that branch of the defendants' motion which was pursuant to CPLR3211 (a) (5) to dismiss the complaint on the ground that it was barred by the doctrine of resjudicata, in effect, granted that branch of the defendants' motion which was pursuant to CPLR3211 (a) (5) to dismiss stated portions of the first cause of action, the second cause of action, andthe third cause of action as time-barred, and denied, as academic, their cross motion for leave toserve a late notice of claim upon the defendant New York City Health and HospitalsCorporation.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof, in effect,granting that branch of the defendants' motion which was pursuant to CPLR 3211 (a) (5) todismiss the complaint on the ground that it was barred by the doctrine of res judicata andsubstituting therefor a provision denying that branch of the motion, (2) by deleting the provisionthereof, in effect, granting that branch of the defendants' motion which was pursuant to CPLR3211 (a) (5) to dismiss so much of the first cause of action as alleged inadequate supervision andtraining of obstetrical personnel and substituting therefor a provision denying that branch of themotion, and (3) by deleting the provision thereof denying, as academic, the plaintiffs' crossmotion for leave to serve a late notice of claim upon the defendant New York City Health andHospitals Corporation; as so modified, the order is affirmed, without costs or disbursements, andthe matter is remitted to the Supreme Court, Queens County, for a determination on the merits ofthe plaintiffs[*2]' cross motion for leave to serve a late notice ofclaim upon the defendant New York City Health and Hospitals Corporation.
On October 18, 1991 the infant plaintiff was born in a hospital operated by the defendantNew York City Health and Hospitals Corporation (hereinafter NYCHHC). It is alleged that thedefendant doctors Arthur Fougner and Marjorie Stephens-Ashton were employees of NYCHHC.It is further alleged that the defendant doctors treated the infant plaintiff's mother during thetwo-week period preceding the infant plaintiff's birth, and treated the infant plaintiff after herbirth.
In 1996 the mother, on behalf of the infant plaintiff and individually, commenced an actionagainst NYCHHC to recover damages for, inter alia, injuries the infant plaintiff allegedlysustained as a result of alleged medical malpractice committed by NYCHHC's employees.NYCHHC subsequently moved to dismiss the complaint for failure to serve a timely notice ofclaim. In the resultant order, affirmed by this Court (see Wade v New York City Health & Hosps. Corp., 16 AD3d 677[2005]), the Supreme Court, among other things, granted NYCHHC's motion.
In 2006 the mother, on behalf of the infant plaintiff and individually, commenced the instantaction against NYCHHC and the defendant doctors, asserting three causes of action. Thedefendants subsequently moved pursuant to CPLR 3211 (a) (5) to dismiss the complaint, arguingthat it was barred by the doctrine of res judicata and the statute of limitations. In the orderappealed from, the Supreme Court, inter alia, granted that branch of the defendants' motionwhich was to dismiss the complaint on the ground that it was barred by the doctrine of resjudicata. We modify.
The prior action was dismissed because the plaintiffs failed to timely serve a notice of claim,a condition precedent to an action against NYCHHC (see General Municipal Law§ 50-e [1] [a]; McKinney's Uncons Laws of NY § 7401 [2] [New York City Healthand Hospitals Corporation Act § 20, as added by L 1969, ch 1016, § 1, as amended];Davidson v Bronx Mun. Hosp., 64 NY2d 59, 61 [1984]). Such a dismissal is not adismissal on the merits (see Fuentes vBrookhaven Mem. Hosp., 10 AD3d 384, 386 [2004]). Since one of the prerequisites tothe invocation of the doctrine of res judicata is that a prior action was determined on the merits(see Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614, 615-616 [1985]; Fuentes vBrookhaven Mem. Hosp., 10 AD3d at 385-386), the Supreme Court incorrectly concludedthat the instant action was barred by the doctrine of res judicata (cf. Wilson v New York City Hous. Auth.,15 AD3d 572, 573 [2005]; Fuentes v Brookhaven Mem. Hosp., 10 AD3d at385-386).
Nevertheless, the second cause of action, sounding in medical malpractice, was properlydismissed, since, under the circumstances, it was time-barred (see General MunicipalLaw § 50-i; CPLR 208; Matter of Daniel J. v New York City Health & Hosps. Corp.,77 NY2d 630, 634 [1991]). In this regard, the second cause of action was asserted againstthe defendant doctors, who allegedly had physician-patient relationships with the plaintiffs. Thesecond cause of action was based upon certain alleged departures of those doctors from good andaccepted medical practice in their treatment of the plaintiffs (see Scott v Uljanov, 74NY2d 673, 673-674 [1989]).
In contrast, contrary to the Supreme Court's conclusion, so much of the first cause of actionas alleged inadequate supervision and training of NYCHHC's obstetrical personnel sounded innegligence, and was, under the circumstances, timely asserted (see General MunicipalLaw § 50-i; CPLR 208). In this regard, that portion of the first cause of action, assertedonly against NYCHHC, is not based upon an allegation that NYCHHC was vicariously liable forthe defendant [*3]doctors' alleged medical malpractice, whichwould render that portion of the cause of action untimely (see Bleiler v Bodnar, 65NY2d 65, 72 [1985]). Rather, that portion of the first cause of action, as well as the otherallegations concerning NYCHHC's failure, among other things, to promulgate and enforceproper procedures and regulations, which the court found sounded in negligence, are based uponcertain alleged omissions of the hospital's management. It cannot be said that this "challengedconduct" either "constitutes medical treatment or bears a substantial relationship to the renditionof medical treatment by a licensed physician" (Weiner v Lenox Hill Hosp., 88 NY2d784, 788 [1996] [internal quotation marks omitted]). Indeed, determining whether thischallenged conduct constituted a breach of NYCHHC's duty to exercise due care would notrequire "an analysis of the medical treatment furnished" to the plaintiffs by the hospital'semployees (Weiner v Lenox Hill Hosp., 88 NY2d at 788; see Bleiler v Bodnar,65 NY2d at 73-74).
The third cause of action, the derivative claim of the mother, was properly dismissed, since,under the circumstances, it was time-barred (see Ann Mary J. v City of N.Y., Health &Hosps. Corp., 204 AD2d 690, 692 [1994]).
Since the Supreme Court determined that the complaint should be dismissed in its entirety onthe ground that it was barred by the doctrine of res judicata, the court denied, as academic, theplaintiffs' cross motion for leave to serve a late notice of claim upon NYCHHC. Under thecircumstances, we remit the matter to the Supreme Court, Queens County, for a determination ofthat cross motion on the merits (cf.Hernandez v Harrison Cent. School Dist., 36 AD3d 665, 666 [2007]; Scalise v Stateof New York, 210 AD2d 916, 917 [1994]).
The plaintiffs' remaining contentions are without merit. Spolzino, J.P., Covello, Balkin andBelen, JJ., concur.