Goodwin v. Pretorius

• Decision Date: 22 March 2013
• Citation: 2013 N.Y. Slip Op. 01931,962 N.Y.S.2d 539,105 A.D.3d 207
• Parties: Robette GOODWIN, as Administratrix of the Estate of Charlene E. Clinton, Deceased, Plaintiff–Respondent, v. Richard W. PRETORIUS, M.D., et al., Defendants, Rizwana Lilani, M.D., Andrew Bognanno, M.D., Leizl F. Sapico, M.D., Clement Ayanbadejo, M.D., and Venkata Puppala, M.D., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 207
962 N.Y.S.2d 539
2013 N.Y. Slip Op. 01931

Robette GOODWIN, as Administratrix of the Estate of Charlene E. Clinton, Deceased, Plaintiff–Respondent,
v.
Richard W. PRETORIUS, M.D., et al., Defendants,
Rizwana Lilani, M.D., Andrew Bognanno, M.D., Leizl F. Sapico, M.D., Clement Ayanbadejo, M.D., and Venkata Puppala, M.D., Defendants–Appellants.

Supreme Court, Appellate Division, Fourth Department, New York.

March 22, 2013.

[962 N.Y.S.2d 540]

Ricotta & Visco, Attorneys & Counselors at Law, Buffalo (K. John Bland of Counsel), for Defendants–Appellants.

Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiff–Respondent.

PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND MARTOCHE, JJ.

SCUDDER, P.J.
[105 A.D.3d 208]I

In May 2009 Charlene E. Clinton (decedent) sought treatment[105 A.D.3d 209]at defendant Erie County Medical Center Corporation

[962 N.Y.S.2d 541]

(ECMCC). She was admitted to ECMCC on May 7, 2009 and was discharged on May 12, 2009. Approximately five days later, decedent was transported by ambulance to ECMCC, and she died the next day. In August 2009, plaintiff served a notice of claim on ECMCC only, naming ECMCC as the sole defendant. Plaintiff thereafter commenced this action against, inter alia, Rizwana Lilani, M.D., Andrew Bognanno, M.D., Leizl F. Sapico, M.D., Clement Ayanbadejo, M.D., and Venkata Puppala, M.D. (collectively, Employee Defendants) and ECMCC (collectively, defendants). Defendants thereafter moved to dismiss the complaint against the Employee Defendants on the grounds that the Employee Defendants were neither served with the notice of claim nor named in the notice of claim ( see generallyGeneral Municipal Law § 50–e). Supreme Court denied the motion and, for the reasons that follow, we conclude that the order should be affirmed.

II

First, as defendants correctly conceded at oral argument of this appeal, General Municipal Law § 50–e does not require service of a notice of claim on the Employee Defendants as a condition precedent to the commencement of this action. ECMCC is a public benefit corporation ( seePublic Authorities Law § 3628 et seq.) and, therefore, it is undisputed that the provisions of General Municipal Law § 50–e apply ( seePublic Authorities Law § 3641[1][a]; see e.g. Stanfield v. Nohejl, 182 A.D.2d 1138, 1138, 586 N.Y.S.2d 765).General Municipal Law § 50–e (1)(b) provides, in pertinent part, that

“[s]ervice of the notice of claim upon an ... employee of a public corporation shall not be a condition precedent to the commencement of an action or special proceeding against such person. If an action or special proceeding is commenced against such person, but not against the public corporation, service of the notice of claim upon the public corporation shall be required only if the corporation has a statutory obligation to indemnify such person under this chapter or any other provision of law” (emphasis added).

It is undisputed that plaintiff served the notice of claim on ECMCC in accordance with the provisions of section 50–e (1)(b). Inasmuch as the statute unambiguously states that service upon the employees of ECMCC, i.e., the Employee Defendants, [105 A.D.3d 210]is not a condition precedent to the commencement of an action against the individual employees, there is no merit to defendants' initial contention on their motion that the failure to serve the Employee Defendants with the notice of claim requires dismissal of the complaint against them ( see generallyPublic Authorities Law § 3641[1] [a]; Schiavone v. County of Nassau, 51 A.D.2d 980, 981, 380 N.Y.S.2d 711,affd.41 N.Y.2d 844, 393 N.Y.S.2d 701, 362 N.E.2d 252;Sandak v. Tuxedo Union School Dist. No. 3, 308 N.Y. 226, 230, 124 N.E.2d 295;Delgado v. Connolly, 246 A.D.2d 484, 485, 667 N.Y.S.2d 255). We thus note that, to the extent that our prior decision in Rew v. County of Niagara, 73 A.D.3d 1463, 1464, 901 N.Y.S.2d 442 suggests that service of a notice of claim upon an employee of a public corporation is a condition precedent to commencement of the action against such employee, that decision is no longer to be followed.

III

Second, defendants contend that, although service of the notice of claim on the Employee Defendants was not required, plaintiff was nevertheless required to name those individual defendants in the notice of claim as a condition precedent to the commencement of an action against

[962 N.Y.S.2d 542]

them. Despite precedent supporting that contention, we agree with Supreme Court that there is no such requirement.

The requirements for a notice of claim are found in General Municipal Law § 50–e (2), which states:

“The notice shall be in writing, sworn to by or on behalf of the claimant, and shall set forth: (1) the name and post-office address of each claimant, and of his [or her] attorney, if any; (2) the nature of the claim; (3) the time when, the place where and the manner in which the claim arose; and (4) the items of damage or injuries claimed to have been sustained so far as then practicable ...”

The notice of claim filed by plaintiff against ECMCC contained all of the required information. Defendants correctly contend, however, that precedent from this Department and others requires that all of the Employee Defendants also be named in the notice of claim. While recognizing the importance of stare decisis, we now conclude that our prior cases were wrongly decided.

In both Rew, 73 A.D.3d at 1464, 901 N.Y.S.2d 442 and Cropsey v. County of Orleans Indus. Dev. Agency, 66 AD3d 1361, 1362, this Court wrote that General Municipal Law § 50–e bars the commencement[105 A.D.3d 211]of an action against an individual who has not been named in a notice of claim where such notice is required by law. The decision in Rew cited only Cropsey for that proposition, and the decision in Cropsey cited only Tannenbaum v. City of New York, 30 A.D.3d 357, 358, 819 N.Y.S.2d 4 in support of its statement to the same effect. In deciding Tannenbaum, the First Department cited only White v. Averill Park Cent. Sch. Dist., 195 Misc.2d 409, 411, 759 N.Y.S.2d 641 [Sup. Ct., Rensselaer County 2003] [James B. Canfield, J.] in support of its statement that section 50–e “makes unauthorized an action against individuals who have not been named in a notice of claim” ( Tannenbaum, 30 A.D.3d at 358, 819 N.Y.S.2d 4).

We can find no cases before White with such a holding. Indeed, in Travelers Indem. Co. v. City of Yonkers, 142 Misc.2d 334, 336, 537 N.Y.S.2d 429, one of the only reported cases addressing the issue prior to the decision in White, the court wrote that it was “not aware of any provision in the General Municipal Law [that] would require the plaintiff to name any officer, appointee or employee in a notice of claim where the municipality was so named as a party.” Because White appears to be the first case to impose such a requirement, we begin our analysis with that case.

The decision in White is devoid of any legal authority supporting the Justice's view that individual employees must be named in a notice of claim as a condition precedent to the commencement of an action against them. The Justice who authored the decision in White concluded that, without naming the individual employees, the municipality does not have “enough information to enable [it] to adequately investigate the claim” (195 Misc.2d at 411, 759 N.Y.S.2d 641). He thus concluded that “permitting plaintiffs to prosecute causes of action against individuals who were not named in the[ ] notice of claim is contrary both to the letter and the purpose of [General Municipal Law § 50–e]” ( id. at 412, 759 N.Y.S.2d 641).¹

[962 N.Y.S.2d 543]

[105 A.D.3d 212]Although White has been cited in numerous published and unpublished trial level cases, the first Appellate Division case to cite White is Tannenbaum, 30 A.D.3d at 358, 819 N.Y.S.2d 4. In that case, the First Department wrote:

“General Municipal Law § 50–e makes unauthorized an action against individuals who have not been named in a notice of claim ( see [White, 195 Misc.2d at 411, 759 N.Y.S.2d 641] ), thus warranting dismissal of the state claims against [the individual defendants] ( see Matter of Rattner v. Planning Commn. of Vil. of Pleasantville, 156 A.D.2d 521, 526, 548 N.Y.S.2d 943 [1989],lv. dismissed75 N.Y.2d 897, 554 N.Y.S.2d 831, 553 N.E.2d 1341 [1990] )” ( id. at 358, 819 N.Y.S.2d 4).

As...