NUSS v. McCALLY (2000)

In an action to recover damages for medical malpractice, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Hall, J.), dated October 12, 1999, which, upon renewal, granted the defendant's motion to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiffs commenced this action against the defendant who allegedly treated the plaintiff Frederick Nuss at the Nassau County Medical Center (hereinafter the Medical Center).   The defendant moved to dismiss the complaint, inter alia, on the ground that the plaintiffs failed to serve a notice of claim as required by General Municipal Law § 50-d(2).   The defendant contends that the notice of claim requirement was applicable because the Medical Center is a public institution maintained by the County of Nassau and because he did not receive any compensation from the plaintiff Frederick Nuss (see, General Municipal Law § 50-d).

The defendant demonstrated as a matter of law that he rendered medical services to the plaintiff Frederick Nuss in a public institution maintained in whole or in part by a municipal corporation without receiving compensation from him (see, General Municipal Law § 50-d[1] ).   Thus, the plaintiffs were required to serve a notice of claim and commence the present action within one year and 90 days from the date the cause of action accrued (see, General Municipal Law §§ 50-d[2];  50-i).   Having failed to do so, the Supreme Court correctly granted the defendant's motion to dismiss the complaint (see generally, Pedrero v. Moreau, 81 N.Y.2d 731, 732, 593 N.Y.S.2d 764, 609 N.E.2d 117;  Norr v. Spiegler, 56 A.D.2d 389, 393, 392 N.Y.S.2d 855, affd. 44 N.Y.2d 809, 406 N.Y.S.2d 290, 377 N.E.2d 743;  Adams v. Bobb-McKoy, 245 A.D.2d 474, 666 N.Y.S.2d 701;  cf., Palmer v. Nassau County Med. Center, 135 A.D.2d 797, 523 N.Y.S.2d 128;  Kral v. County of Westchester, 101 A.D.2d 880, 476 N.Y.S.2d 353;  Lium v. Ploski, 87 A.D.2d 860, 449 N.Y.S.2d 297).

MEMORANDUM BY THE COURT.