Wade v. New York City Health and Hospitals Corporation

Citation874 N.Y.S.2d 171,2009 NY Slip Op 01108,59 A.D.3d 528
Decision Date10 February 2009
Docket Number2007-06828.
PartiesSHARITA WADE et al., Appellants, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION et al., Respondents.
CourtNew York Supreme Court Appellate Division

Ordered that the order is modified, on the law, (1) by deleting the provision thereof, in effect, granting that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground that it was barred by the doctrine of res judicata and substituting therefor a provision denying that branch of the motion, (2) by deleting the provision thereof, in effect, granting that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss so much of the first cause of action as alleged inadequate supervision and training of obstetrical personnel and substituting therefor a provision denying that branch of the motion, and (3) by deleting the provision thereof denying, as academic, the plaintiffs' cross motion for leave to serve a late notice of claim upon the defendant New York City Health and Hospitals Corporation; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a determination on the merits of the plaintiffs' cross motion for leave to serve a late notice of claim upon the defendant New York City Health and Hospitals Corporation.

On October 18, 1991 the infant plaintiff was born in a hospital operated by the defendant New York City Health and Hospitals Corporation (hereinafter NYCHHC). It is alleged that the defendant doctors Arthur Fougner and Marjorie Stephens-Ashton were employees of NYCHHC. It is further alleged that the defendant doctors treated the infant plaintiff's mother during the two-week period preceding the infant plaintiff's birth, and treated the infant plaintiff after her birth.

In 1996 the mother, on behalf of the infant plaintiff and individually, commenced an action against NYCHHC to recover damages for, inter alia, injuries the infant plaintiff allegedly sustained as a result of alleged medical malpractice committed by NYCHHC's employees. NYCHHC subsequently moved to dismiss the complaint for failure to serve a timely notice of claim. In the resultant order, affirmed by this Court (see Wade v New York City Health & Hosps. Corp., 16 AD3d 677 [2005]), the Supreme Court, among other things, granted NYCHHC's motion.

In 2006 the mother, on behalf of the infant plaintiff and individually, commenced the instant action against NYCHHC and the defendant doctors, asserting three causes of action. The defendants subsequently moved pursuant to CPLR 3211(a)(5) to dismiss the complaint, arguing that it was barred by the doctrine of res judicata and the statute of limitations. In the order appealed from, the Supreme Court, inter alia, granted that branch of the defendants' motion which was to dismiss the complaint on the ground that it was barred by the doctrine of res judicata. We modify.

The prior action was dismissed because the plaintiffs failed to timely serve a notice of claim, a condition precedent to an action against NYCHHC (see General Municipal Law § 50-e [1][a]; McKinney's Uncons Laws of NY § 7401 [2] [New York City Health and Hospitals Corporation Act § 20, as added by L 1969, ch 1016, § 1, as amended]; Davidson v Bronx Mun. Hosp., 64 NY2d 59, 61 [1984]). Such a dismissal is not a dismissal on the merits (see Fuentes v Brookhaven Mem. Hosp., 10 AD3d 384, 386 [2004]). Since one of the prerequisites to the invocation of the doctrine of res judicata is that a prior action was determined on the merits (see Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614, 615-616 [1985]; Fuentes v Brookhaven Mem. Hosp., 10 AD3d at 385-386), the Supreme Court incorrectly concluded that the instant action was barred by the doctrine of res judicata (cf. Wilson v New York City Hous. Auth., 15 AD3d 572, 573 [2005]; Fuentes v Brookhaven Mem. Hosp., 10 AD3d at 385-386).

Nevertheless, the second cause of action, sounding in medical malpractice,...

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6 cases
  • Williams v. Nyc Health & Hosps.
    • United States
    • United States State Supreme Court (New York)
    • 21 Noviembre 2018
    ...New York City Health & Hosps. Corp., 81 A.D.3d 575, 576, 916 N.Y.S.2d 143 [2d Dept. 2011] ; Wade v. New York City Health & Hosps. Corp., 59 A.D.3d 528, 530, 874 N.Y.S.2d 171 [2d Dept. 2009] ; Urena v. New York City Health & Hosps. Corp., 35 A.D.3d 446, 446, 825 N.Y.S.2d 529 [2d Dept. 2006] ......
  • Barnaman v. New York City Health & Hosps. Corp.
    • United States
    • New York Supreme Court Appellate Division
    • 6 Diciembre 2011
    ...292; Argudo v. New York City Health & Hosps. Corp., 81 A.D.3d 575, 576, 916 N.Y.S.2d 143; Wade v. New York City Health & Hosps. Corp., 59 A.D.3d 528, 530, 874 N.Y.S.2d 171; Urena v. New York City Health & Hosps. Corp., 35 A.D.3d 446, 446, 825 N.Y.S.2d 529). The plaintiff was required to ser......
  • Wade v. N.Y. City Health
    • United States
    • New York Supreme Court Appellate Division
    • 21 Junio 2011
    ...asserted by the mother, were properly dismissed as time-barred ( see [925 N.Y.S.2d 632] Wade v. New York City Health & Hosps. Corp., 59 A.D.3d 528, 529–531, 874 N.Y.S.2d 171). We further determined that so much of the first cause of action as alleged negligence based on inadequate supervisi......
  • Chin Tsun Yang v. Sneh Prabha Shukla
    • United States
    • New York Supreme Court Appellate Division
    • 6 Abril 2016
    ...Mobile Air Transport, Inc. v. Summit Handling Sys., Inc., 133 A.D.3d 576, 18 N.Y.S.3d 553 ; Wade v. New York City Health & Hosps. Corp., 59 A.D.3d 528, 530, 874 N.Y.S.2d 171 ). Accordingly, the defendant failed to satisfy her prima facie burden of establishing her 29 N.Y.S.3d 68 entitlement......
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