Beckham v. Lefferts General Hospital

• Decision Date: 08 March 1971
• Citation: 320 N.Y.S.2d 263,36 A.D.2d 726
• Parties: John BECKHAM, as administrator, etc., Respondent, v. LEFFERTS GENERAL HOSPITAL et al., Defendants, and Edward Harris Rosenthal, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 263

320 N.Y.S.2d 263

36 A.D.2d 726

John BECKHAM, as administrator, etc., Respondent, v.LEFFERTS GENERAL HOSPITAL et al., Defendants, and Edward Harris Rosenthal, Appellant.

Supreme Court, Appellate Division, Second Department.

March 8, 1971.

Joel H. Lichtenstein, James G. Eberz, New York City, for Edward Harris Rosenthal.

Before RABIN, P.J., and HOPKINS, MUNDER, MARTUSCELLO and LATHAM, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action to recover damages for wrongful death and conscious pain and suffering, defendant Rosenthal appeals from an order of the Supreme Court, Queens County, dated June 24, 1968 and entered in Kings County, which (1) denied his motion to dismiss the action for failure to serve a complaint and (2) granted plaintiff's cross application to compelappellant to accept the complaint.

Order reversed, with $10 costs and disbursements; appellant's motion granted and complaint dismissed as to appellant, with leave to plaintiff to move at Special Term upon proper papers to vacate the dismissal, if plaintiff be so advised; and plaintiff's cross application denied.

In the absence of proof, made under oath by one with knowledge, that the...