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GOMEZ v. MAIMONIDES HOSP.

February 27, 1984

ANA GOMEZ, as Mother and Natural Guardian of MARISOL GOMEZ, and ANA GOMEZ, Individually, Plaintiffs, against MAIMONIDES HOSPITAL, THE CITY OF NEW YORK DEPARTMENT OF HEALTH, DR. JOHN DOE, KINGSBROOK HOSPITAL, ELMHURST HOSPITAL, SUNSET HEALTH SERVICES, INC., PARK MEDICAL GROUP, DR. ELADEAS LAGMAY, JOHN DOE PHARMACEUTICAL COMPANY, Defendants.


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge

 Presently before the Court in this action for personal injuries and loss of services is a series of motions: 1) By defendants Elmhurst General Hospital and the New York City Department of Health (the "City defendants") to dismiss plaintiff's claims for failure to comply with the notice requirements of the New York General Municipal Law; 2) By defendants Sunset Health Services, Inc. ("Sunset") and Park Medical Group ("Park") for summary judgment against plaintiffs and cross-complainants, the City defendants; and 3) By plaintiffs, to discontinue their claims against defendants Maimonides Hospital ("Maimonides") and Kingsbrook Medical Center ("Kingsbrook"). The last motion, being unopposed, is granted.

 Facts

 Infant-plaintiff Marisol Gomez suffered an adverse reaction to a DPT (Diphtheria, Pertussis and Tetanus) vaccination administered on January 25, 1967 at a New York City Child Health Clinic. As a result, infant plaintiff, who at the time was nearly two years old, became severely mentally retarded.

 After the vaccination, the child was in the care of defendant Elmhurst General Hospital ("Elmhurst") for approximately two months, and was treated as an outpatient for an additional year. During July, 1969, she was admitted to defendant Kingsbrook for several weeks of observation. She was treated as an outpatient at defendant Maimonides from 1971 through 1976, except that she was hospitalized at Maimonides for approximately 10 weeks in 1973.

 According to plaintiff's answers to interrogatories, infant plaintiff visited Sunset and Park several times in 1973. Sunset and Park's medical records, however, indicate that infant plaintiff was first seen by them in November, 1975, then again in June, 1976. The records indicate that at no time did physicians at Sunset or Park prescribe any medication for infant plaintiff. Affirmation of Therese M. Martin PP3-5 (May 6, 1982).

 Plaintiffs filed their complaint on September 13, 1978, alleging negligence against all defendants except "John Doe" Pharmaceutical Company, against whom plaintiffs alleged breach of warranty. Summons was returned unexecuted as to defendant Dr. Lagmay, and plaintiffs have never attempted to serve defendant Dr. "John Doe" or defendant "John Doe" Pharmaceutical Company.

 In their answers, City defendants, Maimonides, Kingsbrook, Sunset and Park asserted statute of limitations defenses. Additionally, the answers of all defendants except Maimonides contained cross-claims against all other defendants for contribution and/or indemnity.

 Discussion

 I. City Defendant's Motion to Dismiss

 City defendants have moved to dismiss plaintiffs' claims as barred by New York General Municipal Law §§ 50-e,-1 (McKinney 1977). For the reasons stated below, the motion is granted.

 A. Infant-Plaintiff's Claim

 When plaintiff's claim arises out of an adverse reaction to inoculation with a chemical substance, the claim accrues, for purposes of the statute of limitations, on the date of the inoculation. Martin v. Edwards Laboratories, 60 N.Y. 2d 417, 469 N.Y.S.2d 923, 927, 457 N.E.2d 1150 (1983); Thornton v. Roosevelt Hospital, 47 N.Y.2d 780, 781, 417 N.Y.S.2d 920, 922, 391 ...


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