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MINNIE M. WEAR v. STATE NEW YORK (12/11/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT


December 11, 1969

MINNIE M. WEAR, RESPONDENT,
v.
STATE OF NEW YORK, APPELLANT

Appeal from order of Court of Claims granting permission to file claim. 59 Misc. 2d 485.

Del Vecchio, J. P., Marsh, Moule, Bastow and Henry, JJ.

Memorandum: Defendant appeals from an order of the Court of Claims granting claimant leave to file a late claim for the loss of consortium resulting from injuries inflicted on her husband by malpractice of defendant's hospital employees. The husband was a patient in State University Hospital from July 2, 1966 to September 21, 1966. He filed a notice of intention to file a claim on December 15, 1966 and filed a claim on July 19, 1967 alleging that injuries were inflicted upon him during his hospitalization. On October 15, 1968, more than two years after her husband was discharged from the hospital on September 21, 1966, the wife, claimant-respondent herein, moved pursuant to subdivision 5 of section 10 of the Court of Claims Act for an order permitting her to file a claim. Such a motion cannot be granted, unless it is made within two years after accrual of the claim. A cause of action for malpractice accrues at the end of the course of treatment which includes the wrongful acts or omissions complained of. (Borgia v. City of New York, 12 N.Y.2d 151; Richmond v. Capers, 30 A.D.2d 976.) It is difficult to determine on the affidavits submitted in support of and in opposition to the motion whether such course of treatment terminated on September 21, 1966, when the husband left the hospital or on December 23, 1966 when he was examined at the hospital's Communication Disorder Unit for evaluation of his symptoms or on March 8, 1967 when his speech therapy sessions were concluded. The order should be amended to provide that the question may be raised again when the real situation is disclosed upon the trial. (cf. Rubin v. Koppelman, 263 App. Div. 733; 2 Carmody-Wait 2d, New York Practice, ยง 13:285).

Disposition

 Order unanimously modified in accordance with the memorandum herein, and as so modified affirmed, without costs.

19691211

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