JUAN PEDRERO, A/K/A JUAN RIVERA, AN INFANT, &C., RESPONDENT, v. ANTOINE
CLAUDE MOREAU, ET AL., APPELLANTS.
81 N.Y.2d 731, 609 N.E.2d 117, 593 N.Y.S.2d 764 (1992).
December 16, 1992
1 No. 273
Decided December 16, 1992
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Stephen J. McGrath, for Appellants.
Roy A. Kuriloff, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be reversed, with costs,
defendants' motion for summary judgment granted, and the certified
question answered in the negative.
Plaintiff, born June 3, 1970 at Morrisania Hospital in New York City,
commenced this malpractice action against six physicians for injuries
allegedly sustained as a result of a negligently-induced premature
birth. Morrisania was operated by the City of New York until July 1,
1970, when control was transferred to the New York City Health and
Hospitals Corporation (HHC).
In 1982, a notice of claim was served upon the Comptroller of the City
of New York, and in 1983 Supreme Court permitted plaintiff to serve
HHC with a late notice of claim. The notice served on the City was
untimely, having been served more than ten years after plaintiff's
birth. Thus if such notice was a prerequisite to this action, Supreme
Court properly dismissed the complaint.
In June 1970, when the cause of action accrued, General Municipal Law
§ 50-d(1) required every "municipal corporation" to assume liability
for, and save harmless, physicians who treat persons "without
receiving compensation from such person in a public institution
maintained in whole or in part by the municipal corporation * * *." No
action could be commenced against such physicians unless the notice of
claim procedure was followed (former General Municipal Law § 50-d(2)),
which plaintiff concededly failed to do in this case.
Although the Appellate Division divided over the employment status of
SNIPPETS:
JUAN PEDRERO, A/K/A JUAN RIVERA, AN INFANT, &C., RESPONDENT, v. ANTOINE
CLAUDE MOREAU, ET AL., APPELLANTS.
This memorandum is uncorrected and subject to revision before publication in the New York
Roy A. Kuriloff, for Respondent.
The order of the Appellate Division should be reversed, with costs, defendants' motion for
Plaintiff, born June 3, 1970 at Morrisania Hospital in New York City, commenced this
Morrisania was operated by the City of New York until July 1, 1970, when control was
In 1982, a notice of claim was served upon the Comptroller of the City of New York, and in
In June 1970, when the cause of action accrued, General Municipal Law § 50-drequired every
No action could be commenced against such physicians unless the notice of claim procedure was
Although the Appellate Division divided over the employment status of the physicians on June
If both prongs are satisfied, then the vicarious liability, indemnity and notice of claim
Supreme Court properly granted defendants' motion for summary judgment dismissing the
Order reversed, with costs, defendants' motion for summary judgment dismissing the complaint
Acting Chief Judge Simons and Judges Kaye, Titone, Hancock and Bellacosa concur.
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