CASTILLO v. Southside Hospital, Defendant. (1999)

Order, Supreme Court, Bronx County (Howard Silver, J.), entered on or about February 3, 1998, which granted plaintiff's motion to dismiss defendant-appellants' affirmative defense premised on plaintiff's alleged noncompliance with General Municipal Law § 50-e, and denied defendant-appellants' cross motion to dismiss the complaint for plaintiff's failure to satisfy the conditions set forth in General Municipal Law § 50-e or, alternatively, for a change of venue, and order, same court and Justice, entered June 3, 1998, which, to the extent appealable, denied defendant-appellants' motion to renew, unanimously affirmed, with costs.

 Defendant-appellant physicians did not demonstrate on their original motion that Southside Hospital was a public institution maintained in whole or in part by the County of Suffolk, and, accordingly, failed to establish that plaintiff was required to file a notice of claim as a condition of maintaining this malpractice action against the hospital and physicians who practiced there (see, General Municipal Law § 50-d[1], [2];  cf., Norr v. Spiegler, 56 A.D.2d 389, 392 N.Y.S.2d 855, affd. 44 N.Y.2d 809, 406 N.Y.S.2d 290, 377 N.E.2d 743).

 Venue was properly set in Bronx County and defendants-appellants failed to justify their request for the action's removal by establishing that material witnesses would be inconvenienced by a trial held in the Bronx (see, Cardona v. Aggressive Heating, Inc., 180 A.D.2d 572, 580 N.Y.S.2d 285).

 The motion to renew was properly denied since it did not present new or additional facts unknown to defendant-appellant physicians at the time of their original motion and no valid excuse was presented for the failure to include the “new” matter on the original motion (see, 300 West Realty Co. v. City of New York, 99 A.D.2d 708, 471 N.Y.S.2d 858, appeal dismissed 63 N.Y.2d 952).

MEMORANDUM DECISION.