Opinion
January 30, 1992
Appeal from the Supreme Court, Bronx County (Bertram Katz, J.).
Defendant Howard Katz was an orthopedic resident employed by Bronx-Lebanon Hospital and assigned to a residency program at the Hospital For Joint Diseases when plaintiff's decedent, who was a patient at the hospital, died of respiratory failure. Following commencement of a non-jury malpractice/wrongful death action, Bronx-Lebanon Hospital's professional malpractice insurance manager, United Jewish Appeal-Federation of Jewish Philanthropies of New York (FOJP), settled with plaintiff on behalf of all defendants, including Dr. Katz, in the amount of $325,000, allocating 25% of liability to defendant Katz. Defendant Katz unsuccessfully moved to have the settlement set aside as to him on the ground that he never consented to the settlement.
While defendant's residency agreement with Bronx-Lebanon, which required that he be covered by the hospital's professional liability plan, is silent as to whether his consent to a settlement is required, FOJP presented unchallenged, evidentiary proof that defendant's consent was not required pursuant to custom and practice in this area. Moreover, since Bronx-Lebanon through FOJP provided for an internal dispute resolution mechanism, which the defendant failed to exhaust before seeking judicial relief, he was correctly held to be precluded from seeking such relief (see, Madden v. Atkins, 4 N.Y.2d 283, 291; Morgan v. New York Racing Assn., 72 A.D.2d 740).
Accordingly, defendant's claim that the absence of his consent precludes any settlement on his behalf is without merit.
Concur — Carro, J.P., Rosenberger, Ellerin and Smith, JJ.