New Notice of Claim Provisions in New York State regarding Individual Employees

•         Plain Language of New York Municipal Law 50-e Does Not Require Plaintiff to Include Names of Individual Defendant-Doctors in Medical Malpractice Notice of Claim.

In this action arising out of alleged medical malpractice by a defendant public services medical center and its physician employees, the Appellate Division, Fourth Department, traces back the line of reasoning to the holding in White v. Averill Park Central School District, 195 Misc2d 409 [Sup. Ct. Rensselaer County 2003]) and finds no legal authority for that holding.

In May 2009, decedent sought treatment at Erie County Medical Center, a public services corporation. She was admitted on May 9, 200i9, and discharged on May 12, 2009. Five days later, decedent was transported back to the medical center by ambulance and she died the next day. In August 2009, plaintiff served a notice of claim on the medical center, naming the medical center as the sole defendant. Thereafter, plaintiff commenced this action against five individually named doctors (the Employee Defendants), as well as the medical center. Defendants thereafter moved to dismiss the complaint against the Employee Defendants on the grounds that they were neither served nor named in the notice of claim. (see generally General Municipal Law section 50-e). The motion court denied the motion, and for the reasons stated below, the Appellate Division, Fourth Department, affirmed.

Section 50-e of the General Municipal Law does not require service of notice of claim on the Employee Defendants as a condition precedent to the commencement of this action.

It is undisputed that the plaintiff served the notice of claim on the medical center in accordance with the provisions of section 50-e(1)(b). Inasmuch as the statute unambiguously states that service upon employees of the medical center, i.e., the Employee Defendants, is not a condition precedent to the commencement of an action against the individual employees, there is no merit to defendants’ initial contention on their motion that the failure to serve the Employee Defendants with the notice of claim requires dismissal of the complaint against them. Thus, the Court notes, to the extent that the Court’s prior decision in Rew v. County of Niagara, 73 AD3d 1463 (2010), suggests that service of a notice of claim upon an employee of a public corporation is a condition precedent to commencement of the action against such employee, that decision is no longer to be followed.

The defendants also contend that, although service of the notice of claim on the Employee Defendants was not required, plaintiff was required to name those individual defendants in the noticed of claim as a condition precedent to the commencement of an action against them. Despite precedent supporting that contention, the Court agrees with the motion court that there is no such requirement.

The notice of claim filed by the plaintiff against the medical center contained all of the required information. Defendants contend, however, that precedent from the Fourth Department and others requires that all of the Employee Defendants also be named in the notice of claim. While recognizing the importance of stare decisis, the Court concluded that its prior cases were wrongly decided.

In both Rew and Cropsey v. County of Orleans Industrial Development Agency, 66 AD3d 1361 (2009), this Court wrote that General Municipal Law section 50-e bars the commencement of an action against an individual who has not been named in the notice of claim where such notice is required by law. The decision in Rew cited on Cropsey for that proposition, and the decision in Cropsey cited only Tannenbaum v. City of New York (30 AD3d 357 [2006]), in support of its statement to the same effect. In deciding Tannenbaum, the First Department cited on White v. Averill  in support of its statement that section 50-e makes unauthorized an action against individuals who have not been named in a notice of claim.

The Court can find no cases before White with such a holding. The decision in White is devoid of legal authority supporting the justices’ view that individual employees must be named in a notice of claim as a condition precedent to the commencement of an action against them. The justice who authored the White decision concluded that, without naming the individual employees, the municipality does not have enough information to enable it to investigate the claim.  He thus concluded that permitting plaintiffs to prosecute causes of action against individuals who were not named in the notice of claim is contrary both to the law and the purpose of General Municipal Law section 50-e.

While the First Department in its decision in White cited to Ratner v. Planning Commission of Village of Pleasantville, 156 AD2d 521 [1989], that case does not stand for the proposition that individual employees must be named in a notice of claim. The issue in Ratner was whether a notice of claim, to be served on the public corporation, was required at all, not whether the notice of claim needed to name the specific individual employees.

There is no doubt that, despite the absence of any statutory provision so holding, numerous cases have held that, where a notice of claim is required by law, a plaintiff must, as a condition precedent to the commencement of an action against the individual employees of a public corporation name those employees in the notice of claim. In support of her position that individual employees need not be named in a notice of claim, the plaintiff notes the absence of any such requirement within the statute and quotes Schiavone v. County of Nassau, 51 AD2d 980 (1976) for the proposition that, on a purely practical basis, it is obvious that, uniquely in medical malpractice actions, a potential claimant may not be able to ascertain the perpetrators to the alleged malpractice within the 90-day notice period.

The question for this Court is whether it should follow its prior decisions, based on the doctrine of stare decisis. The Court concludes that the courts have misapplied or misunderstood the law creating, by judicial fiat, a requirement for notice of claim that goes beyond those requirements set forth in the statute. If the legislature had intended that there be a requirement that the individual employees be named in notices of claim, it could have easily created such a requirement.