        SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department

101
CA 12-01441
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND MARTOCHE, JJ.


ROBETTE GOODWIN, AS ADMINISTRATRIX OF THE
ESTATE OF CHARLENE E. CLINTON, DECEASED,
PLAINTIFF-RESPONDENT,

                    V                                OPINION AND ORDER

RICHARD W. PRETORIUS, M.D., ET AL., DEFENDANTS,
RIZWANA LILANI, M.D., ANDREW BOGNANNO, M.D.,
LEIZL F. SAPICO, M.D., CLEMENT AYANBADEJO, M.D.,
AND VENKATA PUPPALA, M.D., DEFENDANTS-APPELLANTS.


RICOTTA & VISCO, ATTORNEYS & COUNSELORS AT LAW, BUFFALO (K. JOHN BLAND
OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John M.
Curran, J.), entered December 21, 2011. The order denied the motion
of defendants Rizwana Lilani, M.D., Andrew Bognanno, M.D., Leizl F.
Sapico, M.D., Clement Ayanbadejo, M.D., Venkata Puppala, M.D. and Erie
County Medical Center Corporation to dismiss the complaint against
defendants-appellants.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Opinion by SCUDDER, P.J.:

                                  I

     In May 2009 Charlene E. Clinton (decedent) sought treatment at
defendant Erie County Medical Center Corporation (ECMCC). She was
admitted to ECMCC on May 7, 2009 and was discharged on May 12, 2009.
Approximately five days later, decedent was transported by ambulance
to ECMCC, and she died the next day. In August 2009, plaintiff served
a notice of claim on ECMCC only, naming ECMCC as the sole defendant.
Plaintiff thereafter commenced this action against, inter alia,
Rizwana Lilani, M.D., Andrew Bognanno, M.D., Leizl F. Sapico, M.D.,
Clement Ayanbadejo, M.D., and Venkata Puppala, M.D. (collectively,
Employee Defendants) and ECMCC (collectively, defendants). Defendants
thereafter moved to dismiss the complaint against the Employee
Defendants on the grounds that the Employee Defendants were neither
served with the notice of claim nor named in the notice of claim (see
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                                                         CA 12-01441

generally General Municipal Law § 50-e). Supreme Court denied the
motion and, for the reasons that follow, we conclude that the order
should be affirmed.

                                  II

     First, as defendants correctly conceded at oral argument of this
appeal, General Municipal Law § 50-e does not require service of a
notice of claim on the Employee Defendants as a condition precedent to
the commencement of this action. ECMCC is a public benefit
corporation (see Public Authorities Law § 3628 et seq.) and,
therefore, it is undisputed that the provisions of General Municipal
Law § 50-e apply (see Public Authorities Law § 3641 [1] [a]; see e.g.
Stanfield v Nohejl, 182 AD2d 1138, 1138). General Municipal Law § 50-
e (1) (b) provides, in pertinent part, that

          “[s]ervice of the notice of claim upon an . . .
          employee of a public corporation shall not be a
          condition precedent to the commencement of an
          action or special proceeding against such person.
          If an action or special proceeding is commenced
          against such person, but not against the public
          corporation, service of the notice of claim upon
          the public corporation shall be required only if
          the corporation has a statutory obligation to
          indemnify such person under this chapter or any
          other provision of law” (emphasis added).

     It is undisputed that plaintiff served the notice of claim on
ECMCC in accordance with the provisions of section 50-e (1) (b).
Inasmuch as the statute unambiguously states that service upon the
employees of ECMCC, 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
(see generally Public Authorities Law § 3641 [1] [a]; Schiavone v
County of Nassau, 51 AD2d 980, 981, affd 41 NY2d 844; Sandak v Tuxedo
Union School Dist. No. 3, 308 NY 226, 230; Delgado v Connolly, 246
AD2d 484, 485). We thus note that, to the extent that our prior
decision in Rew v County of Niagara (73 AD3d 1463, 1464) 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.

                                 III

     Second, defendants contend that, although service of the notice
of claim on the Employee Defendants was not required, plaintiff was
nevertheless required to name those individual defendants in the
notice of claim as a condition precedent to the commencement of an
action against them. Despite precedent supporting that contention, we
agree with Supreme Court that there is no such requirement.
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                                                         CA 12-01441

     The requirements for a notice of claim are found in General
Municipal Law § 50-e (2), which states:

          “The notice shall be in writing, sworn to by or on
          behalf of the claimant, and shall set forth: (1)
          the name and post-office address of each claimant,
          and of his [or her] attorney, if any; (2) the
          nature of the claim; (3) the time when, the place
          where and the manner in which the claim arose; and
          (4) the items of damage or injuries claimed to
          have been sustained so far as then practicable . .
          .”

     The notice of claim filed by plaintiff against ECMCC contained
all of the required information. Defendants correctly contend,
however, that precedent from this 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, we now conclude
that our prior cases were wrongly decided.

     In both Rew (73 AD3d at 1464) and Cropsey v County of Orleans
Indus. Dev. Agency (66 AD3d 1361, 1362), this Court wrote that General
Municipal Law § 50-e bars the commencement of an action against an
individual who has not been named in a notice of claim where such
notice is required by law. The decision in Rew cited only Cropsey for
that proposition, and the decision in Cropsey cited only Tannenbaum v
City of New York (30 AD3d 357, 358) in support of its statement to the
same effect. In deciding Tannenbaum, the First Department cited only
White v Averill Park Cent. Sch. Dist. (195 Misc 2d 409, 411 [Sup Ct,
Rensselaer County 2003] [James B. Canfield, J.]) 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” (Tannenbaum,
30 AD3d at 358).

     We can find no cases before White with such a holding. Indeed,
in Travelers Indem. Co. v City of Yonkers (142 Misc 2d 334, 336), one
of the only reported cases addressing the issue prior to the decision
in White, the court wrote that it was “not aware of any provision in
the General Municipal Law [that] would require the plaintiff to name
any officer, appointee or employee in a notice of claim where the
municipality was so named as a party.” Because White appears to be
the first case to impose such a requirement, we begin our analysis
with that case.

     The decision in White is devoid of any legal authority supporting
the Justice’s 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 decision in White
concluded that, without naming the individual employees, the
municipality does not have “enough information to enable [it] to
adequately investigate the claim” (195 Misc 2d at 411). 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 letter and the purpose of [General Municipal Law
                                 -4-                           101
                                                         CA 12-01441

§ 50-e]” (id. at 412).1

     Although White has been cited in numerous published and
unpublished trial level cases, the first Appellate Division case to
cite White is Tannenbaum (30 AD3d at 358). In that case, the First
Department wrote:

          “General Municipal Law § 50-e makes unauthorized
          an action against individuals who have not been
          named in a notice of claim (see [White, 195 Misc
          2d at 411]), thus warranting dismissal of the
          state claims against [the individual defendants]
          (see Matter of Rattner v Planning Commn. of Vil.
          of Pleasantville, 156 AD2d 521, 526 [1989], lv
          dismissed 75 NY2d 897 [1990])” (id. at 358).

     As noted above, the decision in White cited no legal authority
for its holding and, although the First Department also cited to
Rattner (156 AD2d at 526),2 that case does not stand for the
proposition that individual employees must be named in a notice of
claim. Rattner merely held in relevant part that a notice of claim
pursuant to General Municipal Law § 50-e is required for actions
against individual parties where “it is clear that the [claims] were
brought against them in their official capacities” (id. at 526). That
is because the purpose of a notice of claim is to permit governmental
authorities to investigate claims expeditiously (see Rosenbaum v City
of New York, 8 NY3d 1, 11; see generally Sandak, 308 NY at 232).

     1
      White and, subsequently, Tannenbaum have been followed by
other trial level cases (see e.g. Almas v Loza, 2011 NY Slip Op
32721[U] [Sup Ct, NY County]; Guzman v City of New York, 2011 NY
Slip Op 30797[U] [Sup Ct, NY County]; Martire v City of New York,
2009 NY Slip Op 31648[U] [Sup Ct, NY County]; Gray v City of New
York, 2006 NY Slip Op 30417[U] [Sup Ct, NY County], adhered to on
rearg 2007 NY Slip Op 34198[U] [Sup Ct, NY County]; T.P. ex rel.
Patterson v Elmsford Union Free Sch. Dist., 2012 WL 5992748, *8
[SD NY]; Edwards v Jericho Union Free School Dist., 2012 WL
5817281, *9 [ED NY]; Alexander v Westbury Union Free Sch. Dist.,
829 F Supp 2d 89, 110 [ED NY 2011]; Dilworth v Goldberg, M.D.,
2011 WL 4526555, *6 [SD NY]; DC v Valley Cent. Sch. Dist., 2011
WL 3480389, *1 [SD NY]; Schafer v Hicksville Union Free Sch.
Dist., 2011 WL 1322903, *11 [ED NY]).
     2
      In their reply brief, defendants contend that, because the
Court of Appeals dismissed the plaintiff’s application for leave
to appeal, they thus affirmed the appellate court’s order. That
contention lacks merit because a denial or dismissal of an
application for leave to appeal is not the equivalent of an
affirmance (see e.g. Matter of Conservative Party of State of
N.Y. v New York State Bd. of Elections, 88 NY2d 998, 998; Parillo
v Salvador, 276 AD2d 1000, 1001, lv denied 96 NY2d 702; Matter of
Quirk v Evans, 116 Misc 2d 554, 556).
                                 -5-                           101
                                                         CA 12-01441

Where the governmental entity would be required to indemnify the
individual employees named in a lawsuit, that governmental entity must
be afforded the same opportunity to investigate the claims made
against the individuals. Thus, the issue in Rattner (156 AD2d at 526)
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.

     The First Department has recently reaffirmed its position in
Tannenbaum, stating that an action could not proceed against
individual defendants “because they were not named in the notice of
claim” (Cleghorne v City of New York, 99 AD3d 443, 446). In that
decision, the only case cited by the Court was Tannenbaum.

                                  IV

     Our first foray into the subject matter was our decision in
Cropsey. In that case the plaintiff appealed from an order that,
inter alia, granted that part of the defendants’ motion to dismiss the
complaint in its entirety as to an employee of the defendant County of
Orleans Industrial Development Agency. In determining that Supreme
Court properly granted that part of the motion, we wrote, “ ‘General
Municipal Law § 50-e makes unauthorized an action against individuals
who have not been named in a notice of claim’ where such a notice of
claim is required by law” (Cropsey, 66 AD3d at 1362, quoting
Tannenbaum, 30 AD3d at 358).

     In our next decision addressing the issue, we were called upon to
decide whether a trial court properly denied an individual deputy’s
motion to dismiss the complaint against him (Rew, 73 AD3d at 1464).
We wrote:

          “General Municipal Law § 50-e bars an action
          against an individual who has not been named in a
          notice of claim only where such notice is required
          by law [citing Cropsey, 66 AD3d at 1362]. The
          naming of a county employee in the notice of
          claim, and thus the service of the notice of claim
          upon the employee, ‘is not a condition precedent
          to the commencement of an action against such
          person unless the county is required to indemnify
          such person’ ” (id. at 1464, quoting Bardi v
          Warren County Sheriff’s Dept., 194 AD2d 21, 23-24,
          citing § 50-e [1] [b]).3

We ultimately held in Rew that a notice of claim was not required by
law because the defendant County of Niagara had no duty to indemnify
the individual deputy. The conduct of the deputy, as alleged by the
plaintiff, “ ‘amount[ed] to [an] intentional tort[ ]’ that [fell]
outside the scope of his employment and thus [was] not encompassed

     3
      We have previously addressed the erroneous statement
regarding service, supra.
                                 -6-                           101
                                                         CA 12-01441

within the duty to indemnify” (id. at 1464).

     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 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, plaintiff notes the absence of any such requirement
in General Municipal Law § 50-e and quotes from Schiavone (51 AD2d at
981) for the proposition that,

          “[o]n a purely practical basis, it is obvious
          that, uniquely in medical malpractice actions, a
          potential claimant may be unable to ascertain the
          perpetrators of the alleged malpractice within the
          90-day notice period.”

     Schiavone dealt with a conflict between County Law former § 52
(2), which then required service of the notice of claim on all
individual employees as a condition precedent to the commencement of
an action, and General Municipal Law § 50-d, which dealt with actions
against government-employed physicians and required that service of a
notice of claim be made pursuant to General Municipal Law § 50-e,
i.e., only upon the municipal corporation (Schiavone, 51 AD2d at 981).
The Second Department determined that the failure to serve a notice of
claim on resident physicians did not preclude the subsequent action
against them (id.). Relying on Sandak, the Court wrote that, “[a]s in
Sandak, the physicians in the instant case allegedly performed the
acts complained of; they needed no advance notice, as does a
municipality, to investigate facts of which they were unaware or to
obtain information which subsequently might cease to be available”
(id.).

     The underlying issue in Schiavone concerned service of the notice
of claim on the resident physicians, but the Court’s rationale, i.e.,
recognizing that a plaintiff may not have an opportunity to identify
the perpetrators of the tort in such a short period of time, applies
equally to whether those individuals must be named in a notice of
claim.

                                  V

     The question for this Court is whether we should follow our prior
decisions, based on the doctrine of stare decisis.

          “The doctrine of stare decisis recognizes that
          legal questions, once resolved, should not be
          reexamined every time they are presented . . . The
          doctrine . . . rests upon the principle that a
          court is an institution, not merely a collection
          of individuals, and that governing rules of law do
          not change merely because the personnel of the
          court changes . . . Stare decisis is the preferred
                                 -7-                           101
                                                         CA 12-01441

          course because it promotes the evenhanded,
          predictable, and consistent development of legal
          principles, fosters reliance on judicial
          decisions, and contributes to the actual and
          perceived integrity of the judicial process”
          (Matter of Philadelphia Ins. Co. [Utica Natl. Ins.
          Group], 97 AD3d 1153, 1155 [internal quotation
          marks omitted]).

     While stare decisis is the preferred course, that doctrine “does
not enjoin departure from precedent or preclude the overruling of
earlier decisions” (Matter of Simonson v Cahn, 27 NY2d 1, 3; see Dufel
v Green, 198 AD2d 640, 640-641, affd 84 NY2d 795). We previously
wrote that,

         “[i]n our view, ‘[a]lthough due deference should
         be accorded the doctrine of stare decisis in order
         to promote consistency and stability in the
         decisional law, we should not blindly follow an
         earlier ruling [that] has been demonstrated to be
         unsound simply out of respect for that doctrine’ .
         . . ‘[T]he doctrine of [stare decisis], like
         almost every other legal rule, is not without its
         exceptions. It does not apply to a case where it
         can be shown that the law has been misunderstood
         or misapplied, or where the former determination
         is evidently contrary to reason. The authorities
         are abundant to show that in such cases it is the
         duty of courts to re-examine the question’ ” (Kash
         v Jewish Home & Infirmary of Rochester, N.Y.,
         Inc., 61 AD3d 146, 150; see Rumsey v New York &
         New England R.R. Co., 133 NY 79, 85; see also
         Matter of Eckart, 39 NY2d 493, 498-499).

     Although “[p]recedents involving statutory interpretation are
entitled to great stability” (People v Hobson, 39 NY2d 479, 489; see
Matter of Chalachan v City of Binghamton, 81 AD2d 973, 974, affd 55
NY2d 989), we conclude that the courts have misapplied or
misunderstood the law in creating, by judicial fiat, a requirement for
notices 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 the notices of claim, it
could easily have created such a requirement. Indeed, the absence of
such a requirement has previously been noted (see Verponi v City of
New York, 31 Misc 3d 1230 [A], 2011 NY Slip Op 50908 [U], *5). It is
a well-settled rule of statutory construction that, “where as here the
statute describes the particular situations in which it is to apply,
‘an irrefutable inference must be drawn that what is omitted or not
included was intended to be omitted or excluded’ ” (Patrolmen’s
Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205, 208-
209, quoting McKinney’s Cons Laws of NY, Book 1, Statutes, § 240).
Inasmuch as the notice of claim requirements are “in derogation of [a]
plaintiff’s common-law rights,” the statute creating such a
requirement should be strictly construed in the plaintiff’s favor
                                  -8-                           101
                                                          CA 12-01441

(Sandak, 308 NY at 230).

     Finally, as the Court of Appeals has often stated:

           “The test of the sufficiency of a Notice of Claim
           is merely ‘whether it includes information
           sufficient to enable the [municipality] to
           investigate’ . . . ‘Nothing more may be required’
           . . . Thus, in determining compliance with the
           requirements of General Municipal Law § 50-e,
           courts should focus on the purpose served by a
           Notice of Claim: whether based on the claimant’s
           description municipal authorities can locate the
           place, fix the time and understand the nature of
           the accident” (Brown v City of New York, 95 NY2d
           389, 393; see e.g. Rosenbaum, 8 NY3d at 10-11;
           O’Brien v City of Syracuse, 54 NY2d 353, 358).

     The underlying purpose of the statute may be served without
requiring a plaintiff to name the individual agents, officers or
employees in the notice of claim. We share the concern enunciated in
Schiavone (51 AD2d at 981) that plaintiffs may not be able to meet
that judicially-created requirement.

                                   VI

     Therefore, to the extent that our decisions in Rew (73 AD3d at
1464) and Cropsey (66 AD3d at 1362) held that General Municipal Law §
50-e bars an action against individuals who have not been named in a
notice of claim, where such a notice is required by law, those cases
are no longer to be followed. Accordingly, we conclude that the order
denying defendants’ motion to dismiss the complaint against the
Employee Defendants should be affirmed.

     In view of our determination that the order should be affirmed,
we do not address plaintiff’s remaining contention.




Entered:   March 22, 2013                        Frances E. Cafarell
                                                 Clerk of the Court
