Marabello v. City of New York

• Decision Date: 14 February 1984
• Citation: 99 A.D.2d 133,472 N.Y.S.2d 933
• Parties: Carmine MARABELLO, Respondent, v. The CITY OF NEW YORK, et al., Appellants; et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 933

472 N.Y.S.2d 933

99 A.D.2d 133

Carmine MARABELLO, Respondent, v. The CITY OF NEW YORK, et al., Appellants; et al., Defendants.

Supreme Court, Appellate Division Second Department.

Feb. 14, 1984.

Frederick A.O. Schwarz, Jr., Corporation Counsel, New York City (Leonard Koerner and Irving Genn, Asst. Corporation Counsels, New York City, of counsel), for appellants.

Lipsig, Sullivan & Liapakis, P.C., New York City (Roberta Ashkin, Richard Kokel and Dennis Lopez, New York City, of counsel), for respondent.

Before TITONE, J.P., and LAZER, WEINSTEIN and BOYERS, JJ.

BOYERS, Justice.

This appeal raises a novel issue, namely, whether the doctrine of continuous treatment (see Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777; CPLR 214-a) may be applied to toll the 90-day period within which a notice of claim must be filed (see General Municipal Law, § 50-e; New York City Health and Hospitals Corporation Act, § 20, subd. 2 [L.1969, ch. 1016, § 1, as amd. L.1973, ch. 877, § 1] ) where a plaintiff-patient is successively treated for the same or related illnesses or injuries by different municipal medical facilities under the aegis of the New York City Health and Hospitals Corporation. We conclude that while the continuous treatment exception may be applied under such circumstances, that principle is, as a matter of law, inapplicable to the particular facts of this case.

Recognizing that "the provision and delivery of comprehensive care and treatment of the ill and infirm, both physical and mental, are of vital and paramount concern and essential to the protection and promotion of the health, safety and welfare of the inhabitants of the state of New York and the city of New York" (New York City Health and Hospitals Corporation Act, § 2 [L.1969, ch. 1016] ), and finding that there were "inadequate general and specialized health care facilities" in New York City, the State Legislature, in 1969, created a separate entity to operate the municipal health facilities in our city, namely, the public benefit corporation known as the New York City Health and Hospitals Corporation (New York City Health and Hospitals Corporation Act, § 2 [L.1969, ch. 1016, § 1]; Harlem Hosp. Center Med. Bd. v. Hoffman, 84 A.D.2d 272, 273, 445 N.Y.S.2d 981, mot. to dsm. app. granted 56 N.Y.2d 807). "In addition to transferring the operating responsibility from the city to the New York City Health and Hospitals Corporation, this legislation changed the notice of claim procedure. Under the new statutory system, it became necessary for a party sustaining injury allegedly attributable to [such] health facilities to file a verified notice of claim with the corporation prior to the commencement of a lawsuit" (Bender v. New York City Health and Hosps. Corp., 38 N.Y.2d 662, 665, 382 N.Y.S.2d 18, 345 N.E.2d 561; see, generally, New York City Health and Hospitals Corporation Act, § 2 [L.1969, ch. 1016]; General Municipal Law, § 50-e).

In the case at bar, plaintiff sustained physical injuries on July 11, 1979 when he was thrown from the motorcycle on which he was riding pillion when that vehicle collided with an automobile ^*.

As a result, plaintiff was removed by ambulance to the emergency room of the municipal health care facility known as Coney Island Hospital, where he was treated and released with instructions to return, should he still have pain. Plaintiff returned to the hospital emergency room seven days later and had previously inserted sutures removed from his cheek. Thereafter, plaintiff returned to Coney Island Hospital on several occasions complaining of pain in the low back and sacral areas. He was referred to the Department of Rehabilitation, and treated for "[status post] injury to low back and sacral area", receiving, inter alia, seven diathermy treatments at the physical therapy unit between August 14, 1979 and September 11, 1979.

Plaintiff's last three recorded visits to Coney Island Hospital occurred on March 29, July 7 and August 4, 1980. On the first occasion, plaintiff's lumbar-sacral spine was x-rayed and he was given medication, having been diagnosed as suffering from "low back-pain". On the last two occasions, plaintiff registered with the emergency room receiving clerk complaining of pain of the left side and pain in the body from the waist down, respectively. On the first of these visits, plaintiff was called for treatment on three occasions but failed to answer. On the last occasion, his vital signs were taken but he was not examined by a physician since he "walked out" of the emergency room. (As plaintiff's notice of claim referring to the alleged medical malpractice occurring at Coney Island Hospital was served on August 25, 1980, the only visits to that institution within the statutory 90-day period for such service were the visits of July 7 and August 4, 1980.)

At the statutory hearing held by the comptroller on the Coney Island claim, plaintiff testified that he had consulted with private physicians about disturbances in bowel and bladder function. He did not, however, make any complaint with respect to such symptoms to anyone at Coney Island Hospital, because, plaintiff testified, he was not being treated by that institution any longer. These physicians included Dr. Spargel, who referred plaintiff to Dr. Benjamin, a neurologist and Dr. Riscalla, a urologist (who plaintiff first visited about three weeks after the motorcycle accident) who referred plaintiff to neurologist Dr. Zuckerman. It was Dr. Zuckerman who, in August, 1980, referred plaintiff to another physician practicing the same speciality, Dr. Kasy. It was Dr. Kasy who arranged for plaintiff's admission on August 8, 1980, to Metropolitan Hospital, another municipal facility under the jurisdiction of the New York City Health and Hospitals Corporation (see New York City Health and Hospitals Corporation Act, § 5, subd. 7 [L.1969, ch. 1016, § 1] ). Plaintiff was found to have been suffering from weakness of the lower extremeties which had progressed to paralysis three weeks prior to the Metropolitan admission and thereafter underwent surgery to remove a spinal tumor on August 11 and August 20, 1980.

It was on August 25, 1980, while plaintiff was hospitalized at Metropolitan, that he served a notice of claim upon the comptroller and the Health and Hospitals Corporation asserting a claim for medical malpractice founded upon the failure of Coney Island Hospital to properly treat and diagnose his condition. Plaintiff made no application for leave to serve a late notice (see General Municipal Law, § 50-e, subd. 5). Plaintiff remained an inpatient at Metropolitan for six and a half weeks. Thereafter, Metropolitan referred him to Kings County Hospital, another municipal health facility, where plaintiff underwent radiation therapy and where he was hospitalized for the removal of bladder calaculi in February, 1981.

On or about July 2, 1981, plaintiff moved, inter alia, to supplement his original notice of claim nunc pro tunc so as to include claims against Metropolitan Hospital and Kings County Hospital and two individual defendants. In support, plaintiff asserted that he left the care of Metropolitan Hospital suffering from "incontinence" which condition resulted from the medical and surgical malpractice of Dr. Kasy and other physicians on the staffs of Metropolitan and Kings County Hospitals.

Denying, without prejudice to renew, that branch of plaintiff's motion which sought permission to supplement his original notice of claim, Justice ARONIN at Special Term wrote in pertinent part:

"The plaintiff has submitted no factual information from which the court could conclude that service of the original notice of claim was timely. If the timeliness of the original notice of claim rests on a 'continuous treatment' formula, supporting facts must be presented (Fonda v. Paulson [Paulsen], 46 A.D.2d 540 ; see also McKinney's CPLR, Practice Commentary and Supplemental Practice Commentaries to CPLR 214-a by Joseph McLaughlin 1975, 1979)."

Plaintiff's subsequent motion to supplement his notice of claim nunc pro tunc to include allegations arising from his care, treatment and confinement at Metropolitan and Kings County Hospitals was granted, without memorandum, by order of Special Term (SHAW, J.), dated February 8, 1982 and the municipal defendants appeal.

As a general rule, an action for medical malpractice accrues on the date when the act, omission or failure complained of occurs (CPLR 214-a; see discussion in Siegel, New York Practice, § 42). Two exceptions, initially delineated by our Court of Appeals and subsequently codified by the Legislature, serve to temper the harshness of this rule, namely (1) where there is "continuous treatment" (CPLR 214-a; Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777, supra), and (2) where the malpractice consists of the defendant's leaving a "foreign object" in the body (CPLR 214-a; Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d 427, 301 N.Y.S.2d 23, 248 N.E.2d 871; see discussion in Barrella v. Richmond Mem. Hosp., 88 A.D.2d 379, 382-383, 453 N.Y.S.2d 444; McLaughlin, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 214-a, pp. 168-175, 1982-1983 Pocket Part). Such exceptions also apply to the timeliness of service of a notice of claim, a condition precedent to the commencement of an action against a municipal hospital under the jurisdiction of the Health and Hospitals Corporation (see Borgia v. City of New York, supra, 12 N.Y.2d p. 155, 237 N.Y.S.2d 319, 187 N.E.2d 777 see, also, Davis v. City of New York, 38 N.Y.2d 257, 379 N.Y.S.2d 721, 342 N.E.2d 516; Cotto v. City of New York, App.Div., 471 N.Y.S.2d 865 [2d Dept., Feb. 6, 1984] ).

By his brief, plaintiff seeks to persuade this court that because Coney Island Hospital, Metropolitan Hospital and Kings County Hospital are all facilities under the aegis of the Health and Hospitals Corporation, they...