Crair v. Brookdale Hosp. Medical Center, Cornell University

• Decision Date: 15 March 1999
• Docket Number: No. 1,No. 2,1,2
• Parties: 1999 N.Y. Slip Op. 2211 Lisa Darcy CRAIR, as Administrator of the Estate of Stacey Crair, deceased, appellant-respondent, v. BROOKDALE HOSPITAL MEDICAL CENTER, CORNELL UNIVERSITY, et al., defendants, Emory University School of Medicine, respondent-appellant. (Action) Lisa Darcy Crair, as Administrator of the Estate of Stacey Crair, deceased, appellant, v. Brij B. Saxena, et al., defendants, Rector and Visitors of the University of Virginia, et al., respondents. (Action)
• Court: New York Supreme Court — Appellate Division

Page 771

686 N.Y.S.2d 771

1999 N.Y. Slip Op. 2211

Lisa Darcy CRAIR, as Administrator of the Estate of Stacey

Crair, deceased, appellant-respondent, v. BROOKDALE HOSPITAL MEDICAL CENTER, CORNELL UNIVERSITY, et

al., defendants,

Emory University School of Medicine, respondent-appellant.

(Action No. 1)

Lisa Darcy Crair, as Administrator of the Estate of Stacey

Crair, deceased, appellant, v. Brij B. Saxena, et al., defendants,

Rector and Visitors of the University of Virginia, et al.,

respondents. (Action No. 2)

Supreme Court, Appellate Division,

Second Department.

March 15, 1999.

Sullivan & Liapakis, P.C., New York, N.Y. (Stephen C. Glasser and Joseph W. Belluck of counsel), for Lisa Darcy Crair, appellant-respondent in Action No. 1 and appellant in Action No. 2.

Walsh & Sheehan, LLP, New York, N.Y. (Barbara A. Sheehan and Christopher P. Foley of counsel), for respondent-appellant Emory University School of Medicine in Action No. 1.

DeCicco, Gibbons, McNamara, P.C., New York, N.Y. (Daniel J. McNamara and D. Alan Rudlin pro hac vice of counsel), for respondent Rector and Visitors of the University of Virginia in Action No. 2 and defendant University of Virginia in Action No. 1 J. Joseph Curran, Jr., Attorney-General of Maryland, Baltimore, Md. (Dawna M. Cobb of counsel), and Flemming, Zulack & Williamson, New York, N.Y. (Elizabeth A. O'Connor of counsel), for respondent University of Maryland Medical Center in Action No. 2 (one brief filed).

SONDRA MILLER, J.P., DAVID S. RITTER, GLORIA GOLDSTEIN and DANIEL F. LUCIANO, JJ.

MEMORANDUM BY THE COURT.

In two related actions to recover damages for personal injuries, Lisa Darcy Crair, the plaintiff in both actions, appeals from (1) an order of the Supreme Court, Kings County (Barasch, J.), dated June 30, 1997, which granted the motion by the defendant Rector and Visitors of the University of Virginia to dismiss the complaint in Action No. 2 insofar as asserted against it, (2) an order of the same court, also dated June 30, 1997, which granted the motion by the defendant University of Maryland Medical Center to dismiss the complaint in Action No. 2 insofar as asserted against it, and (3) so much of an order of the same court, dated August 26, 1997, as, upon granting the branch of her motion which was for reargument of the denial of her motion to dismiss the affirmative defense of improper service of process asserted by Emory University School of Medicine in Action No. 1, which motion was denied by an order of the same court, dated April 18, 1997, in effect, adhered to the prior determination, and the defendant Emory University School of Medicine cross-appeals from so much of the order dated August 26, 1997, as granted that branch of the plaintiff's motion which was to join it as a defendant, nunc pro tunc, in Action No. 1, and deemed the supplemental summons and amended complaint dated June 15, 1995, to be served upon it, nunc pro tunc.

ORDERED that the orders dated June 30, 1997, are affirmed; and it is further,

ORDERED that the order dated August 26, 1997, is affirmed insofar as appealed from; and it is further,

ORDERED that the order dated August 26, 1997, is reversed insofar as cross-appealed from, and that branch of the plaintiff's motion which was to join Emory University School of Medicine as a defendant, nunc pro tunc, in Action No. 1 and deem the supplemental summons and amended complaint dated June 15, 1995, to be served upon it, nunc pro tunc, is denied; and it is further,

ORDERED that the Rector and Visitors of the University of Virginia, the University of Maryland Medical Center, and Emory University School of Medicine are awarded one bill of costs, payable by the plaintiff.

The plaintiff alleges that between the years 1966 and 1978, her sister, Stacey Crair, received injections of a human growth hormone (hereinafter HGH), which was contaminated with a virus that caused her to contract Creutzfeldt-Jakob Disease, a degenerative and incurable neurological disease. The complaints in Action No. 1 and Action No. 2 assert causes of action to recover damages for negligence, strict products liability, breach of express and implied warranties, and fraud against various medical centers, hospitals and universities, which allegedly manufactured and/or distributed the contaminated HGH.

Two of the defendants, Rector and Visitors of the University of Virginia (hereinafter the University of Virginia) and the University of Maryland Medical Center (hereinafter the University of Maryland), moved to dismiss the complaint in Action No. 2 insofar as it was asserted against them on the grounds that the court lacked personal and subject matter jurisdiction. They argued, inter alia, that the plaintiff did not comply with the notice requirements of their States' respective Tort Claims Acts (Va. Code Ann. § 8.01-195.6; Md. Code Ann. [State Gov't] § 12-106). The plaintiff argued in opposition that she had substantially complied with the notice requirements.

New York requires strict compliance with the notice of claim provisions of the New York Court of Claims Act (Court of Claims Act § 10; see, Parochial Bus Systems v. Board of Educ. of City of N.Y., 60 N.Y.2d 539,...