Lomax v. New York City Health and Hospitals Corporation
| Court | New York Supreme Court Appellate Division |
| Citation | 262 A.D.2d 2,690 N.Y.S.2d 548 |
| Parties | PATRICIA LOMAX, Appellant,<BR>v.<BR>NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent. |
| Decision Date | 01 June 1999 |
262 A.D.2d 2
690 N.Y.S.2d 548
PATRICIA LOMAX, Appellant,
v.
NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent.
Decided June 1, 1999.
Concur — Ellerin, P. J., Rosenberger, Wallach and Saxe, JJ.
Plaintiff claims that her foot infection was improperly treated at North Central Bronx Hospital from January 28 to January 31, 1995, and that as a result she was readmitted on February 13, 1995 and suffered amputation of part of her right foot. She also claims that the amputation was done without her prior consent.
On or about April 6, 1995, plaintiff served a Notice of Claim upon defendant New York City Health and Hospitals Corporation
[262 A.D.2d 3]
(NYCHHC) which asserted that on January 28 and February 13, 1995, she was admitted to Bronx Municipal Hospital, and that the staff failed to treat her condition properly, resulting in "[a]mputations of portions of right foot, [o]perations and surgical procedures, [p]ain and suffering, [e]motional distress". Plaintiff's designation of the wrong hospital was apparently an inadvertent error due to the similarity of their names. Both hospitals are run by NYCHHC, which has access to their patient records.
A hearing pursuant to General Municipal Law § 50-h was held on June 29, 1995, at which plaintiff was extensively cross-examined regarding the nature and specifics of her claim. She clarified that the hospital in question was North Central Bronx, not Bronx Municipal.
Plaintiff then served a verified complaint which again incorrectly identified the hospital as Bronx Municipal, but gave the correct dates of treatment and the type of injury. Defendant's answer did not raise the defense that the Notice of Claim was improper. After being served with the answer, plaintiff served a bill of particulars on defendant on or about July 23, 1996. The bill of particulars named the right hospital.
Along with the bill of particulars, plaintiff's counsel served defense counsel with a proposed stipulation permitting plaintiff to amend the Notice of Claim to reflect that she was treated at North Central Bronx Hospital. The defense refused to sign the stipulation, and on August 15, 1997, moved to dismiss the complaint on the ground that the Notice of Claim was improper. Defendant argued that since the 90-day period following the accrual of the claim had passed (General Municipal Law § 50-e [1] [a]), plaintiff's attempt to alter the Notice of Claim should be considered an attempt to add a new claim, for which plaintiff would require permission to file a late Notice of Claim. However, defendant asserted, permission should be denied because plaintiff did not apply to file a late Notice of Claim within one year and 90 days from accrual of the claim (Pierson v City of New York, 56 NY2d 950, 955).
On December 12, 1997, plaintiff cross-moved to amend the Notice of Claim and the verified...
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