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Robette Goodwin, As Administratrix of the Estate of Charlene E. Clinton, Deceased, Plaintiff-Respondent v. Richard W. Pretorius

March 22, 2013

ROBETTE GOODWIN, AS ADMINISTRATRIX OF THE ESTATE OF CHARLENE E. CLINTON, DECEASED, PLAINTIFF-RESPONDENT,
v.
RICHARD W. PRETORIUS, M.D., ET AL., DEFENDANTS, RIZWANA LILANI, M.D., ANDREW BOGNANNO, M.D., LEIZL F. SAPICO, M.D., CLEMENT
AYANBADEJO, M.D., AND VENKATA PUPPALA, M.D., DEFENDANTS-APPELLANTS.



Appeal from an order of the Supreme Court, Erie County (John M. Curran, J.), entered December 21, 2011.

The opinion of the court was delivered by: Scudder, P.J.:

Goodwin v Pretorius

Released on March 22, 2013

Appellate Division, Fourth Department

Scudder, P.J., J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND MARTOCHE, JJ.

OPINION AND

The order denied the motion of defendants Rizwana Lilani, M.D., Andrew Bognanno, M.D., Leizl F. Sapico, M.D., Clement Ayanbadejo, M.D., Venkata Puppala, M.D. and Erie County Medical Center Corporation to dismiss the complaint against defendants-appellants.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Opinion by Scudder, P.J.:

I In May 2009 Charlene E. Clinton (decedent) sought treatment at defendant Erie County Medical Center Corporation (ECMCC). She was admitted to ECMCC on May 7, 2009 and was discharged on May 12, 2009. Approximately five days later, decedent was transported by ambulance to ECMCC, and she died the next day. In August 2009, plaintiff served a notice of claim on ECMCC only, naming ECMCC as the sole defendant. Plaintiff thereafter commenced this action against, inter alia, Rizwana Lilani, M.D., Andrew Bognanno, M.D., Leizl F. Sapico, M.D., Clement Ayanbadejo, M.D., and Venkata Puppala, M.D. (collectively, Employee Defendants) and ECMCC (collectively, defendants). Defendants thereafter moved to dismiss the complaint against the Employee Defendants on the grounds that the Employee Defendants were neither served with the notice of claim nor named in the notice of claim (see generally General Municipal Law § 50-e). Supreme Court denied the motion and, for the reasons that follow, we conclude that the order should be affirmed. II

First, as defendants correctly conceded at oral argument of this appeal, General Municipal Law § 50-e does not require service of a notice of claim on the Employee Defendants as a condition precedent to the commencement of this action. ECMCC is a public benefit corporation (see Public Authorities Law § 3628 et seq.) and, therefore, it is undisputed that the provisions of General Municipal Law § 50-e apply (see Public Authorities Law § 3641 [1] [a]; see e.g. Stanfield v Nohejl, 182 AD2d 1138, 1138). General Municipal Law § 50-e (1) (b) provides, in pertinent part, that "[s]ervice of the notice of claim upon an . . . employee of a public corporation shall not be a condition precedent to the commencement of an action or special proceeding against such person. If an action or special proceeding is commenced against such person, but not against the public ...


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