Opinion
2255
January 14, 2003.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered December 12, 2001, which, insofar as appealed from, denied defendant-appellant doctor's motion to dismiss the complaint for failure to serve a notice of claim or to commence the action within a year and 90 days of the accrual of plaintiff's cause of action for medical malpractice, unanimously modified, on the law and the facts, to grant leave to renew the motion upon submission of additional evidence of appellant's employment by North Central Bronx Hospital, and otherwise affirmed, without costs.
Edward G. Bithorn, for Plaintiffs-Respondents.
Sharyn Rootenberg, for Defendant.
Nardelli, J.P., Rosenberger, Ellerin, Williams, Lerner, JJ.
An issue of fact exists as to whether appellant was acting within the scope of his employment at North Central Bronx Hospital, a facility of the New York City Health and Hospitals Corporation, at the time of the alleged malpractice. However, we modify so as to grant leave to renew since this issue of fact might well be resolved by additional evidence of appellant's employment, including, in particular, the entire affiliation agreement between Health and Hospitals Corporation and Montefiore Medical Center, on whose latter behalf plaintiffs claim appellant was or appeared to be acting.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.