Smalls v. New York City Health and Hospitals Corp.

• Decision Date: 14 December 1976
• Citation: 389 N.Y.S.2d 372,55 A.D.2d 537
• Parties: Application of Mary SMALLS for Leave to file Notice of Claim, etc., Petitioner-Respondent, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 372

389 N.Y.S.2d 372

55 A.D.2d 537

Application of Mary SMALLS for Leave to file Notice of Claim, etc., Petitioner-Respondent, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION et al Respondents-Appellants.

Supreme Court, Appellate Division, First Department.

Dec. 14, 1976.

S. S. Hausen, Flushing, for petitioner-respondent.

L. Koerner, New York City, for respondents-appellants.

Before MARKEWICH, J.P., and MURPHY, LUPIANO, BIRNS and NUNEZ, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County, entered March 18, 1975 granting petitioner's motion for reargument and upon reargument adjudging that petitioner timely filed notice of claim with respondents, unanimously affirme without costs and without disbursements.

In this proceeding, petitioner moved on September 6, 1974 for an order pursuant to section 50--e of the General Municipal Law granting leave to serve a notice of claim upon respondents or in the alternative declaring that the notice of claim served simultaneously with the motion was timely.

We note, initially, that although respondent New York City Health and Hospitals Corporation is not a municipal corporation within the meaning of the General Municipal Law (see definition in section 2 thereof; Bender v. Jamaica Hospital et ano., 40 N.Y.2d 560, 388 N.Y.S.2d 269, 356 N.E.2d 1228), the provisions of section 50--e of the General Municipal Law are nevertheless applicable thereto by virtue of incorporation into the New York City Health and Hospitals Corporation Act (McKinney's Cons.Laws of N.Y., Book 65, Unconsolidated Laws, § 7401, subd. 2).

Petitioner alleges the following: On May 2, 1973, she was admitted to Harlem Hospital for a cervical myelogram concerning an injury she sustained some eighteen years previously. Defendant Kulvanich, a physician, performed the procedure on May 8, 1973. When the needle was inserted into petitioner's spine she immediately felt pain but said defendant assured her this was normal. The pain continued throughout her hospital stay, during which said defendant continued to assure petitioner the pain was a normal sequel to the myelogram and would subside. However, the pain grew worse and began to radiate into her left leg. She was discharged from Harlem Hospital on October 9, 1973, the date of her last treatment by said defendant.

In addition, petitioner alleged that thereafter, as the pain in her back and leg grew worse, she visited various clinics for treatment, none of which offered her relief or enlightenment as to the nature of her condition. Finally, in February 1974 she commenced treatment at Presbyterian Hospital, where on May 28, 1974, an electromyelogram was performed on her back. On June 25, 1974, the physician who performed that procedure informed her she had a nerve root lesion in her lower back and might eventually lose the use of her left leg entirely and that this was probably the result of the myelogram at Harlem Hospital. This conclusion was confirmed by another...