UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
October 16, 1974
Dorothy POPE, Plaintiff,
MEMORIAL HOSPITAL OF GREENE COUNTY and John P. Myers, Defendants
MacMahon, District Judge.
The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.
Defendant, Memorial Hospital of Greene County, moves under Rule 12(b), Fed.R.Civ.P., to dismiss the complaint on the ground that no notice of claim was served upon it. Since we have considered matter outside the complaint, we will treat this motion as one for summary judgment, as provided by Rule 56, Fed.R.Civ.P.
Although the matter is not free from confusion,
it appears from the affidavits and exhibits submitted on the motion that, beyond any genuine issue of fact, defendant hospital is a department of the County of Greene, State of New York, and, therefore, a governmental unit entitled to all of the immunity and protection afforded the county itself.
Applying New York law, as we must in this diversity case to recover damages for negligence and malpractice, it is clear that a notice of claim is a condition precedent to suit against Greene County.
Concededly, plaintiff never served a notice of claim upon defendant hospital.
Accordingly, summary judgment dismissing this action as to defendant hospital is hereby granted, and, there being no just reason for delay, the Clerk of the court is directed to enter judgment dismissing this action as against defendant Memorial Hospital of Greene County.