188 Misc. 727 | N.Y. Sup. Ct. | 1947
This is an application for leave to serve a notice of claim on the City of New York pursuant to the provisions of section 50-e of the General Municipal Law. Petitioners intend to bring an action against the City of New York for the alleged malpractice of a doctor in the city’s employ (General Municipal Law, § 50-d). The city objects to granting this motion on the grounds that the proposed notice does not indicate that the doctor is being joined in the action and that a notice must be served on him as well as on the city. If the doctor were to be joined, such a notice must be served on him and the provisions of section 50-e would be applicable (Schmid v. Werner, 188 Misc. 718). The doctor, however, is not a necessary party and section 50-d is not one of indemnification only, as contended by the city. A reading of the section indicates that action may be instituted against either the doctor or the city or both, and the Court of- Appeals has indicated that the section gives an
Sufficient excuse has been presented by the wife for allowing her to file a notice of claim. However, her husband was not physically incapacitated during the sixty-day period and his application must be denied.
Motion granted as to Helen Polk and denied as to Le Roy Polk. Settle order.
