Soto v. Greenpoint Hospital
| Decision Date | 30 June 1980 |
| Citation | 429 N.Y.S.2d 723,76 A.D.2d 928 |
| Parties | In the Matter of Michael SOTO, Respondent, v. The GREENPOINT HOSPITAL, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Allen G. Schwartz, Corp. Counsel, New York City (Bernard Burstein and L. Kevin Sheridan, New York City of counsel), for appellant.
Leon A. Milman, Brooklyn (Clifford S. Weber, Brooklyn of counsel), for respondent.
Before HOPKINS, J. P., and LAZER, GIBBONS and GULOTTA, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to section 50-e of the General Municipal Law for permission to serve a late notice of claim, the appeal is from an order of the Supreme Court, Kings County, dated June 23, 1978, which granted the petition.
Order reversed, on the law, without costs or disbursements, and application denied.
In July, 1973, when the petitioner was five and one-half years old, he complained of difficulty in breathing and swallowing and was taken to the Greenpoint Hospital. Following his examination by a physician, petitioner's mother was advised that there was nothing wrong. Nevertheless, it is alleged that over the following two years petitioner suffered weight loss, became ill, and ultimately was hospitalized in October, 1975. Surgery in March, 1976 uncovered a toy lodged in petitioner's esophagus. Based upon these facts, petitioner, by motion returnable March 17, 1978, commenced a proceeding pursuant to section 50-e of the General Municipal Law for permission to file a late notice of claim. He prevailed at Special Term on the theory that section 50-e of the General Municipal Law, as amended in 1976 (L. 1976, ch. 745), should be applied retroactively so as to avoid the strict one-year limitation in which one must petition for leave to file a late notice of claim under the pre-1976 statute. This theory has been explicitly rejected in Matter of Beary v. City of Rye, 44 N.Y.2d 398, 406 N.Y.S.2d 9, 377 N.E.2d 453, and petitioner now asserts on appeal that under the "foreign object" exception to the general rule that a cause of action founded in medical malpractice accrues upon the date of the commission of the malpractice, his cause of action accrued upon the discovery of the object in March, 1976 and, therefore, pursuant to Matter of Beary v. City of Rye, supra, p. 413, 406 N.Y.S.2d 9, 377 N.E.2d 453, the statute as amended controls.
Although the malpractice in the case at bar, loosely speaking, involves a foreign object, it does not come within the "foreign object" exception to...
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