64 Misc. 2d 81 | N.Y. Sup. Ct. | 1970
This is an action for malpractice against the Orange County Chest Clinic, its supervising bodies: The Department of Health and Board of Supervisors of Orange County, and Dr. Krasnitz who is the Director of the Chest Clinic. The municipal defendants were served with a notice of claim but the defendant doctor was served with only a summons and complaint. The doctor now moves to dismiss the action against him on the ground that it is precluded by plaintiffs’ failure to serve a notice of claim upon him pursuant to sections 50-d and 50-e of the General Municipal Law and subdivision 2 of section 52 of the County Law.
It is clear that sections 50-d and 50-e of the General Municipal Law do not require a notice of claim to be served on the doctor. Section 50-d only requires that a notice be served in compliance with section 50-e, and under the holding of the Court of Appeals in Sandak v. Tuxedo Union School Dist. No. 3 (308 N. Y. 226) service of a notice of claim upon the municipal corporation alone is sufficient compliance with section 50-e.
Service of a notice of claim on an employee of the county is required, however, by subdivision 2 of section 52 of the County Law which provides as follows: “ No action shall be maintained
This section appears to be an anachronism which is in direct conflict with the legislative intent found in the provisions of section 50-e by the Court of Appeals in the Sandak case. Possibly because of this fact, in De Angelo v. Lattimer (26 Misc 2d 20) an action against a county employee, the court apparently chose to ignore this provision of the County Law and held that service of a notice of claim on the municipality was sufficient, citing the Sandak case.
Plaintiffs contend that subdivision 4 of section 50-e of the General Municipal Law, which provides that no other notice or service of the notice of claim shall be required, is controlling over subdivision 2 of section 52 of the County Law. It must be noted, however, that in the Sandak case, the Court of Appeals looked to both section 50-e of the General Municipal Law and section 3813 of the Education Law, which is the corresponding statute for employees of the school district.
"Whether or not subdivision 4 of section 50-e of the General Municipal Law has in effect nullified subdivision 2 of section 52 of the County Law in all cases, it appears to the court that section 50-d of the General Municipal Law is controlling in the present case. It is clear that this action is brought under section 50-d which provides for liability upon the county in an action for damages resulting from malpractice by a doctor in treatment of a person without receiving compensation from such person in a public institution maintained by the municipal corporation. The only requirement for maintaining an action under this section against the municipality and the physician is that a notice of claim shall have been served in compliance with section 50-e. Since this section was passed by the Legislature sometime after subdivision 2 of section 52 of the County Law, it must be inferred that the Legislature intended section 50-d to control in this present matter.
The plaintiffs having complied with section 50-d, the motion to dismiss is denied.