UMEH v. Danielle Friedman, M.D., et al., Defendants–Respondents. (2024)

Order, Supreme Court, Bronx County (Alicia Gerez, J.), entered May 3, 2023, which granted defendants Danielle Friedman, M.D. and Andre Outon, M.D.'s motion to dismiss the complaint as against them pursuant to CPLR 3211(a)(7), unanimously affirmed, without costs.

Plaintiff's action was previously dismissed as against New York City Health and Hospitals Corporation (HHC) based on his failure to serve HHC with a notice of claim (see Umeh v. New York City Health & Hosps. Corp., 205 A.D.3d 599, 169 N.Y.S.3d 579 [1st Dept. 2022]).  The motion court correctly granted the subsequent motion of Drs. Friedman and Outon to dismiss the complaint as against them based on the failure to comply with the notice of claim requirement (see General Municipal Law § 50–e[1];  McKinney's Uncons Laws of N.Y. § 7401[2] [New York City Health and Hospital Corporation Act § 20, L 1969, ch 1016, § 1]).  Friedman and Outon met their burden of establishing that they were employees of HHC subject to the notice of claim requirements (see Uncons Laws § 7401[6];  General Municipal Law §§ 50–e[1][a];  50–k;  Young v. New York City Health & Hosps. Corp., 147 A.D.3d 509, 509–510, 48 N.Y.S.3d 316 [1st Dept. 2017];  Jae Woo Yoo v. New York City Health & Hosps. Corp., 239 A.D.2d 267, 268, 657 N.Y.S.2d 189 [1st Dept. 1997]).  Contrary to plaintiff's contentions, Friedman and Outon properly submitted admissible evidence through an attorney affirmation, as well as the affidavit of a person with personal knowledge (see Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]), and the court properly considered additional documents submitted by them in reply in direct response to plaintiff's opposition papers (see Sanford v. 27–29 W. 181st St. Assn., Inc., 300 A.D.2d 250, 251, 753 N.Y.S.2d 49 [1st Dept. 2002]).

Friedman was not required to plead failure to file a notice of claim as an affirmative defense, since compliance with the notice of claim requirement is part of plaintiff's substantive cause of action and plaintiff was required to plead compliance (see Singleton v. City of New York, 55 A.D.3d 447, 865 N.Y.S.2d 600 [1st Dept. 2008];  Reaves v. City of New York, 177 A.D.2d 437, 437, 576 N.Y.S.2d 280 [1st Dept. 1991]).  Friedman and Outon's motion to dismiss was not barred by the one motion rule of CPLR 3211(e), as this was their first motion to dismiss the complaint.

We have considered plaintiff's remaining arguments and find them unavailing.

The Decision and Order of this Court entered herein on May 21, 2024 is hereby recalled and vacated (see M-2934 decided simultaneously herewith).