Opinion
March 10, 1947.
William L. Standard for petitioners.
Charles E. Murphy, Corporation Counsel ( Frank J. Horan of counsel), for respondent.
This is an application for leave to serve a notice of claim on the City of New York pursuant to the provisions of section 50-e Gen. Mun. of the General Municipal Law. Petitioners intend to bring an action against the City of New York for the alleged malpractice of a doctor in the city's employ (General Municipal Law, § 50-d). The city objects to granting this motion on the grounds that the proposed notice does not indicate that the doctor is being joined in the action and that a notice must be served on him as well as on the city. If the doctor were to be joined, such a notice must be served on him and the provisions of section 50-e would be applicable ( Schmid v. Werner, 188 Misc. 718). The doctor, however, is not a necessary party and section 50-d is not one of indemnification only, as contended by the city. A reading of the section indicates that action may be instituted against either the doctor or the city or both, and the Court of Appeals has indicated that the section gives an independent right of action against the city ( Derlicka v. Leo, 281 N.Y. 266, 268). Petitioners state that they have no intention of proceeding against the doctor. It is not necessary, therefore, for the doctor to be served with a notice of claim (see Tenth Annual Report of N.Y. Judicial Council, 1944, p. 268).
Sufficient excuse has been presented by the wife for allowing her to file a notice of claim. However, her husband was not physically incapacitated during the sixty-day period and his application must be denied.
Motion granted as to Helen Polk and denied as to Le Roy Polk. Settle order.