Lomax v. New York City Health and Hospitals Corporation

• Decision Date: 01 June 1999
• 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.
• Court: New York Supreme Court — Appellate Division

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 (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 complaint to correct the name of the hospital. Plaintiff relied on General Municipal Law § 50-e (6), which provides that at any stage of the proceedings, the court has discretion to correct a good-faith error in the Notice of Claim, as long as the other party was not prejudiced thereby. She argued that defendant had notice of the correct location from the section 50-h hearing, and that since defendant operates both hospitals, it could readily have uncovered the relevant information while the facts were still fresh, simply by looking up her patient records. Nonetheless, the motion court erroneously denied her cross-motion and granted defendant's motion to dismiss the complaint.

The purpose of a Notice of Claim is to allow the municipal defendant to make a prompt investigation of the facts and preserve the relevant evidence (Matter of Beary v City of Rye, 44 NY2d 398, 412). The applicable statute should be applied flexibly so as to balance two countervailing interests: on the one hand, protecting municipal defendants from stale or frivolous claims, and on the other hand, ensuring that a meritorious case is not dismissed for a ministerial error (Matter of Quiroz v City of New York, 154 AD2d 315, 316). "General Municipal Law § 50-e was not meant as a sword to cut down honest claims, but merely as a shield to protect municipalities against spurious ones" (DeLeonibus v Scognamillo, 183 AD2d 697, 698).

Thus, if the defendant had timely access to the necessary information by other means, the complaint should not be dismissed merely because the facts in the Notice of Claim were partially deficient (Lord v New York City Hous. Auth., 184 AD2d 406, 407-408). For instance, in Dillard v City of New York (67 AD2d 878), the Notice of Claim alleged that plaintiff was injured when a sign fell on her from 505 Lenox Avenue, but at the section 50-h hearing that was conducted within three months thereafter, it was ascertained that the correct address was 503 Lenox Avenue. We permitted plaintiff to amend her complaint to reflect the right address 16 months after the accident (Dillard v City of New York, supra, at 879). Similarly, in Seise v City of New York (212 AD2d 467), the Notice of Claim misidentified...