Golia v. Health Ins. Plan of Greater New York
| Decision Date | 14 July 1958 |
| Parties | Andrew GOLIA, Edward Golia, an infant, by Mary Golia, his guardian ad litem, and Mary Golia, individually, respondents-appellants, v. HEALTH INSURANCE PLAN OF GREATER NEW YORK and another, etc., defendants, Astoria Medical Group, Ernest E. Kent and Walter W. Wayne, individually and as partners doing business under the name of Astoria Medical Group, appellants-respondents. |
| Court | New York Supreme Court — Appellate Division |
Donald S. Sherwood, New York City, for appellants.
John H. Tovey, Jr., New York City, for respondents.
Before NOLAN, P. J., and WENZEL, BELDOCK, MURPHY and KLEINFELD, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries alleged to have been caused by a partnership and three physicians who are stated to be members of the partnership, and for other relief, the partnership, Astoria Medical Group, and two of the physicians, Kent and Wayne, named as members thereof, moved to dismiss the five causes of action pleaded in the complaint on the ground that they did not accrue within the time limited by law for the commencement of such actions (Rules of Civil Practice, rule 107, subd. 5). The Special Term granted the motion to dismiss the first cause of action as to the individuals, granted the motion to dismiss the fifth cause of action, denied said motion to dismiss the first cause of action as to Astoria, and denied the motion as to the second, third and fourth causes of action. Kent, Wayne and Astoria appeal from so much of said order as denied the motion to dismiss the first cause of action as against Astoria, and from so much of said order as denied the motion to dismiss the second and third causes of action. The Golias appeal from so much of said order as granted the motion to dismiss the first cause of action as to Kent and Wayne, and from so much of said order as granted the motion to dismiss the fifth cause of action.
Order modified by striking therefrom the first, second, third and fourth ordering paragraphs and by substituting therefor provisions that the motion be granted as to the first, second and third causes of action, and that said motion be denied as to the fourth and fifth causes of action. As so modified, order insofar as appealed from affirmed, without costs.
The first cause of action, as pleaded against the partnership, states no different cause of action than that pleaded against the individuals who are members of the partnership. It is to recover damages for malpractice and is consequently barred by the two-year Statute of Limitations (Civil Practice Act, § 50, subd. 1). Although the persons comprising the partnership may be sued in the partnership name (Civil Practice Act, § 222-a) the partnership is not a separate entity which may be held liable for negligence on the theory that it permitted Andrew Golia to be treated by unskilled or incompetent agents or employees. The acts complained of against the partnership were those of its individual members acting in their professional capacity in the treatment of said Andrew Golia (cf. Caplan v. Caplan, 268 N.Y. 445, 198 N.E. 23, 101 A.L.R. 1223; Stolpe v. Staten Island Hospital, Inc., 282 App.Div. 896, 124 N.Y.S.2d 915, affirmed 3 N.Y.2d 961, 169 N.Y.S.2d 32). His cause of action accrued when he suffered the injury complained of which occurred at the latest when he was last treated by Kent and Wayne, notwithstanding that he did not discover that he had suffered injury or damage, if such was the...
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