Opinion
2016–08363 Index No. 13392/99
06-05-2019
Doreen TOWNSEND, Appellant, v. CITY OF NEW YORK, et al., Defendants, New York City Health and Hospitals Corporation, Kings County Medical Center, Respondent.
Ransford B. McKenzie, Brooklyn, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Max O. McCann, Alana D. Sisnett, and Anna Wolonciej of counsel), for respondent.
Ransford B. McKenzie, Brooklyn, N.Y., for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Max O. McCann, Alana D. Sisnett, and Anna Wolonciej of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOSEPH J. MALTESE, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Michelle Weston, J.), dated May 2, 2016. The order granted the motion of the defendant New York City Health and Hospitals Corporation, Kings County Medical Center, pursuant to, inter alia, General Municipal Law § 50–e and CPLR 3211(a) to dismiss the complaint insofar as asserted against it, and denied the plaintiff's cross motion pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim on that defendant, or, alternatively, to deem her notice of claim timely served on that defendant nunc pro tunc.
ORDERED that the order is affirmed, with costs.
On June 22, 1998, the office of the Comptroller of the City of New York (hereinafter the Comptroller) received a notice of claim alleging that the plaintiff was injured on March 23, 1998, as a result of the negligence of the defendant City of New York and the defendant New York City Health and Hospitals Corporation, Kings County Medical Center (hereinafter HHC). Thereafter, without leave of court, the plaintiff served a notice of claim on HHC, which was received by its Office of Legal Affairs on June 21, 1999.
This action was commenced in 1999, and was actively litigated through 2004, before being removed from the calendar thereafter. It was not actively litigated for the next 10 years, but in February of 2015, in an order which was not appealed, the Supreme Court granted the plaintiff's motion to restore the case to the active calendar. In September 2015, HHC moved to dismiss the complaint insofar as asserted against it on the ground that the plaintiff failed to serve it with a timely notice of claim. The plaintiff cross-moved for leave to serve a late notice of claim or, alternatively, to deem her notice of claim timely served on HHC nunc pro tunc. In the order appealed from, the Supreme Court granted HHC's motion and denied the plaintiff's cross motion.
The City and HHC are separate entities for the purposes of service of a notice of claim (see Scantlebury v. New York City Health & Hosps. Corp., 4 N.Y.3d 606, 611, 797 N.Y.S.2d 394, 830 N.E.2d 292 ; Platt v. New York City Health & Hosps. Corp., 105 A.D.3d 1026, 1027, 964 N.Y.S.2d 223 ). Accordingly, the plaintiff's previous service of a notice of claim on the Comptroller on June 22, 1998, did not constitute service on HHC (see Barnaman v. New York City Health & Hosps. Corp., 90 A.D.3d 588, 589, 934 N.Y.S.2d 443 ). Moreover, the plaintiff's late service of a notice of claim on HHC in June 1999, without leave of court, was a nullity (see Frederick v. City of New York, 163 A.D.3d 776, 777, 81 N.Y.S.3d 500 ; Cassidy v. Riverhead Cent. Sch. Dist., 128 A.D.3d 996, 997, 11 N.Y.S.3d 102 ; Rist v. Town of Cortlandt, 56 A.D.3d 451, 452, 866 N.Y.S.2d 762 ).
Since the plaintiff's cross motion for leave to serve a late notice of claim or, alternatively, to deem her notice of claim timely served on HHC nunc pro tunc was made well beyond the expiration of the one–year–and–90–day statute of limitations, the Supreme Court lacked the authority to grant it (see Chtchannikova v. City of New York, 138 A.D.3d 908, 909, 30 N.Y.S.3d 233 ; McShane v. Town of Hempstead, 66 A.D.3d 652, 653, 886 N.Y.S.2d 751 ). Finally, there is no merit to the plaintiff's contention that HHC should be estopped from raising the untimeliness of the notice of claim (see Feliciano v. New York City Hous. Auth., 123 A.D.3d 876, 877–878, 999 N.Y.S.2d 456 ; Barnaman v. New York City Health & Hosps. Corp., 90 A.D.3d at 589–590, 934 N.Y.S.2d 443 ; see also Yessenia D. v. New York City Health & Hosps. Corp., 139 A.D.3d 454, 29 N.Y.S.3d 788 ).
HHC's remaining contention is without merit.
MASTRO, J.P., MALTESE, DUFFY and CONNOLLY, JJ., concur.