Opinion
November 19, 1993
Appeal from the Supreme Court, Erie County, Wolf, Jr., J.
Present — Denman, P.J., Callahan, Balio, Boomer and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Upon reviewing plaintiff's complaint and the bill of particulars, we conclude that the allegations therein state claims sounding in medical malpractice (see, Bleiler v Bodnar, 65 N.Y.2d 65). Those allegations challenge the hospital's assessment of the supervisory and treatment needs of its patient by failing to secure the decedent in her bed and to monitor and supervise the decedent's movements sufficiently (see, Scott v Uljanov, 74 N.Y.2d 673). Thus, Supreme Court should have required plaintiff to serve a certificate of merit as required under CPLR 3012-a and further, to file a notice of medical malpractice claim as required under CPLR 3406 (a) (see, Seidensticker v Huntington Hosp., 194 A.D.2d 718). In addition, the ad damnum clause must be stricken (see, CPLR 3017 [c]; Rice v Vandenebossche, 185 A.D.2d 336).
Consequently, (1) plaintiff's motion to strike defendant's second affirmative defense is denied; (2) defendant's cross motion is granted in part by directing plaintiff to serve a certificate of merit and file a notice of medical malpractice claim within 30 days after service upon her of the order of this Court with notice of entry; and (3) the ad damnum clause is stricken from the complaint.