Davis v. City of New York
| Decision Date | 22 December 1975 |
| Citation | 379 N.Y.S.2d 721,38 N.Y.2d 257,342 N.E.2d 516 |
| Parties | , 342 N.E.2d 516 Joseph DAVIS, Individually and as Administrator of the Estate of Billie Davis, Deceased, Appellant, v. CITY OF NEW YORK, Respondent. (And Another Action.) |
| Court | New York Court of Appeals Court of Appeals |
Herman Schmertz, New York City, for appellant.
W. Bernard Richland, Corp. Counsel, New York City (Irving Cohen and L. Kevin Sheridan, New York City, of counsel), for respondent.
The order of the Appellate Division should be affirmed. We conclude as a matter of law that the doctrine of continuous treatment (Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S. 319, 187 N.E.2d 777) may not be invoked in the circumstances disclosed in this record to defer the running of the statutory claim period. *
Decedent went to Ft. Greene Cancer Detection Center on February 20, 1968 to arrange for a diagnostic examination in connection with a lump in her breast. She was advised to return on February 26 for a full physical examination. Following that examination the diagnostic findings were noted on a chart and a copy was forwarded to decedent's private physician. She was advised that there was nothing to be concerned about and to return in two years. A year later in February, 1969 decedent again went to the center for further examination in response to a mail communication from the center. The record does not disclose the results of this examination or any advice or communication which resulted from it.
In December, 1969, decedent's family physician advised her to see a surgeon with regard to the condition in her breast. It is alleged that she telephoned the center and spoke with a receptionist. She was told that she would be called to come back in February or March. The record contains an undated letter from the center scheduling an appointment on February 17, 1970.
On January 22, 1970 decedent was admitted to Kings Highway Hospital where a radical mastectomy disclosed carcinoma of the right breast with extensive metastases to auxiliary lymph nodes. Decedent's condition deteriorated steadily thereafter until her death on February 16, 1973.
In substance the present action seeks recovery on the theory of malpractice in connection with the alleged misdiagnosis of decedent's condition by Ft. Greene Cancer Detection Center. Notice of claim was served on defendant city on April 13, 1970 and the present action was commenced by the service of a summons and complaint on December 22, 1970.
We hold that the 90-day period for the filing of a timely notice of claim under sections 50--e and 50--i of the General Municipal Law began to run no later than February, 1969. Accordingly, the notice in April, 1970 was not timely.
A cause of action for malpractice generally accrues at the time of the commission of the alleged act of malpractice. Since the alleged malpractice here occurred in February, 1968 or at the latest in February, 1969, appellant seeks to come within the 'continuous...
To continue reading
Request your trial
-
Holdridge v. Heyer-Schulte Corp. of Santa Barbara
...1963). However, if the services performed are merely intermittent, this doctrine will not be applied. Davis v. City of New York, 38 N.Y.2d 257, 379 N.Y.S.2d 721, 342 N.E.2d 516 (1975) (cancer detection center, which performed a diagnostic examination on the decedent in February 1968 and aga......
-
Sacher v. State
...for malpractice generally accrues at the time of the commission of the alleged act of malpractice" ( Davis v. City of New York, 38 N.Y.2d 257, 259, 379 N.Y.S.2d 721, 342 N.E.2d 516 ; see Gang v. State of New York, 177 A.D.3d at 1302, 113 N.Y.S.3d 423 ). Here, the sole act of negligence that......
-
Connell v. Hayden
...rule that a cause of action for malpractice accrues on the date of the act or omission complained of (Davis v. City of New York, 38 N.Y.2d 257, 259, 379 N.Y.S.2d 721, 342 N.E.2d 516; 1 Weinstein-Korn-Miller, NY Civ. Prac., par. 214-a.03) or upon the termination of a series of wrongful acts ......
-
B.F. v. Reprod. Med. Assocs. of N.Y., LLP
...limitations in a medical malpractice action begins to run on the date of the alleged malpractice (see Davis v. City of New York, 38 N.Y.2d 257, 259, 379 N.Y.S.2d 721, 342 N.E.2d 516 [1975] ). This comported with the associated common-law rule that a medical malpractice claim accrues on the ......
-
C. Medical Malpractice Procedure
...N.Y.S.3d 404 (2018).[210] Capece v. Nash, 14 Misc. 3d 1233(A), 836 N.Y.S.2d 497 (Sup. Ct., Kings Co. 2007) (citing Davis v. City of N.Y., 38 N.Y.2d 257, 379 N.Y.S.2d 721 (1975)). [211] Id.[212] Schwelnus v. Urological Assoc. of L.I., P.C., 94 A.D.3d 971, 943 N.Y.S.2d 141 (2d Dep't 2012).[21......
-
C. Medical Malpractice Procedure
...N.Y.S.3d 404 (2018).[227] Capece v. Nash, 14 Misc. 3d 1233(A), 836 N.Y.S.2d 497 (Sup. Ct., Kings Co. 2007) (citing Davis v. City of N.Y., 38 N.Y.2d 257, 379 N.Y.S.2d 721 (1975)). [228] Id.[229] Schwelnus v. Urological Assoc. of L.I., P.C., 94 A.D.3d 971, 943 N.Y.S.2d 141 (2d Dep't 2012).[23......