Armstrong v. City of New York

Joseph A. Sarafite, J.

Plaintiff moves to strike the defense of failure ‘ ‘ to comply with the provisions of section 50E of the General Municipal Law ”. This is a malpractice action against the city. The deceased infant was initially taken to the City Hospital on April 23, 1962 for treatment of smoke poisoning, and she was released therefrom on April 30, 1962. The infant remained ill and was taken back to the hospital on May 6, 1962. She was removed to another hospital on the same day and died on May 8.

In a malpractice action against the City of New York, a notice of claim must be served within 90 days after the claim accrues (General Municipal Law, § 50-e). The Court of Appeals has recently held that ‘ ‘ when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint, the ‘ accrual7 comes only at the end of the treatment ” (Borgia v. City of New York, 12 N Y 2d 151, 155). There is no requirement that the injured party be confined to the hospital during the entire period complained of in order for there to be “ continuous treatment ”. Therefore, the notice of claim served on August 3, 1962 was timely served, and this motion is granted.