694 N.Y.S.2d 461 | N.Y. App. Div. | 1999
In an action to recover damages for medical malpractice, the defendants appeal from an order of the Supreme Court, Kings County (Bellard, J.), dated May 21, 1998, which denied their motion to dismiss the complaint.
Ordered that the order is modified, on the law, by granting that branch of the defendants’ motion which was to dismiss the complaint insofar as asserted against the defendant City of New York; as so modified, the order is affirmed, without costs or disbursements, and the action against the defendant New York City Health and Hospitals Corporation is severed.
This is an action to recover damages for medical malpractice which allegedly occurred at a New York City hospital. In such an action, the New York City Health and Hospitals Corporation, not the City of New York, is the proper defendant (see, Randolph v City of New York, 69 NY2d 844; Pollock v City of New York, 145 AD2d 550).
The branch of the defendants’ motion which was to dismiss the complaint against the New York City Health and Hospitals
By failing to raise this purported defect in opposition to an application to vacate a judgment in its favor, the New York City Health and Hospitals Corporation engaged in misleading conduct, the clear intent of which was to delay any resolution of the issue of whether the notice of claim was properly served until after the 10-year toll pursuant to CPLR 208 had expired (see, Matter of Dockery v Department of Hous. Preservation & Dev., 223 AD2d 705; Jeshurin v Liberty Lines Tr., 191 AD2d 412). Therefore, it is equitably estopped from raising the purported defect at this juncture.
The defendants’ remaining contentions are without merit (see, Competello v Giordano, 51 NY2d 904; Rose Ocko Found. v Lebovits, 259 AD2d 685). S. Miller, J. P., Joy, H. Miller and Feuerstein, JJ., concur.