Section 50-i (subd 1, par [c]) of the General Municipal Law, which limits the time for bringing an action against a public corporation to "one year and ninety days after the happening of the event upon which the claim is based", has generally been regarded as a Statute of Limitations subject to the tolls for infancy and insanity provided in CPLR 208 (Sadler v Horvath, 44 A.D.2d 905; Matter of Hurd v County of Allegany, 39 A.D.2d 499, 502; Corbett v Fayetteville-Manlius Cent. School Dist., 34 A.D.2d 379; Abbatemarco v Town of Brookhaven, 26 A.D.2d 664; La Fave v Town of Franklin, 20 A.D.2d 738; see Matter of Beary v City of Rye, 44 N.Y.2d 398, 408; see, also, Zeitler v City of Rochester, 32 A.D.2d 728; cf. Russo v City of New York, 258 N.Y. 344). Today we hold that the period specified in the amended version of section 50-e (subd 5) during which a court may authorize service of a late notice of claim is completely coextensive with the time limited for commencing an action against a public corporation and is therefore similarly subject to the tolling provisions of CPLR 208.
Following the Court's ground-breaking decision in Flanagan, several lower courts attempted to extend its analysis to cases not involving tangible paraphernalia accidentally left inside the patient's body (see, e.g., Merced v New York City Health Hosps. Corp., 56 A.D.2d 553, revd 44 N.Y.2d 398 [negligently performed tubal ligation discovered following emergency surgery for ectopic pregnancy]; Matter of Smalls v New York City Health Hosps. Corp., 55 A.D.2d 537, revd 44 N.Y.2d 398 [lesion caused by negligently performed cervical myelogram]; Dobbins v Clifford, 39 A.D.2d 1 [damage to pancreas during course of operation to remove spleen]; Murphy v St. Charles Hosp., 35 A.D.2d 64 [malfunction in surgically implanted prosthetic device]; but see, Schiffman v Hospital for Joint Diseases, 36 A.D.2d 31 [declining to apply Flanagan rule to erroneous diagnosis of malignancy]). In several of these decisions, the courts relied on the factors mentioned in the Flanagan opinion, notably the supposed absence of professional judgment or discretion, the lack of a possible break in the causal chain and the small danger of a false claim, and concluded that the use of a discovery accrual date was warranted even though no specific "foreign object" was involved.
All the more should we hesitate to depart further from the traditional view, considering that the Court of Appeals has twice taken occasion to say that the Legislature, in codifying the foreign object exception in the manner in which it did, has expressed an intent that it "not be broadened beyond its existing [i.e., Flanagan] confines". (Goldsmith v Howmedica, Inc., 67 N.Y.2d 120, 123; Matter of Beary v City of Rye, 44 N.Y.2d 398, 415.) Accordingly, the order of the Supreme Court, New York County (Michael J. Dontzin, J.), entered January 9, 1989, which dismissed the action as barred by the Statute of Limitations, should be affirmed, without costs.
As part of these protections, a litigant generally may not maintain a tort claim against a municipality unless the litigant served upon the municipality a notice of claim within 90 days of the claim's accrual (see General Municipal Law [GML] §§ 50-i [1]; 50-e [1]). The purpose of the notice of claim is to alert the municipality to the existence of the claim so that it can promptly investigate and preserve any relevant evidence before the passage of time renders such evidence unavailable or lessens its probative value (see Matter of Beary v City of Rye, 44 N.Y.2d 398, 412 [1978]; Siegel & Connors, NY Prac § 32 at 43 [6th ed 2018]). In furtherance of that purpose, the service of a notice of claim triggers the municipality's right to compel oral and physical examinations of a claimant before an action is commenced-a unique discovery tool unavailable to the typical tort defendant (see GML § 50-h; Colon, 35 N.Y.3d at 83).
Absent these compelling considerations, the majority concluded, there was insufficient justification to apply the traditional rule of accrual in such instances, where it worked harsh consequences on plaintiffs who often discovered the presence of the foreign object long after the Statute of Limitations had run. In the wake of Flanagan, however, some courts broadened the application of the discovery rule to encompass other circumstances so long as the underlying rationale (the Flanagan factors listed above) seemed to apply, notwithstanding that the case did not involve a foreign object, or indeed any object at all ( see, e.g., Murphy v St. Charles Hosp., 35 A.D.2d 64; Merced v New York City Health Hosps. Corp., 56 A.D.2d 553, revd 44 N.Y.2d 398). In response, when the Legislature codified the foreign object discovery rule articulated in Flanagan and enacted CPLR 214-a, it explicitly provided that the rule was for foreign objects only and, to further limit its application only to things never meant to remain inside a patient, excluded fixation devices, chemical compounds and prosthetic aids from its purview.
But the expression of intent must be sufficient to show that the Legislature contemplated the retroactive impact on substantive rights and intended that extraordinary result. Even within the same legislation, language may be sufficiently clear to effectuate application of some amendments to cases arising from past conduct but not others with more severe retroactive effect (seeLandgraf, 511 U.S. at 280–281, 114 S.Ct. 1483 ; Matter of Beary v. City of Rye, 44 N.Y.2d 398, 410–411, 406 N.Y.S.2d 9, 377 N.E.2d 453 [1978] ). If retroactive application would not only impose new liability on past conduct but also revive claims that were time-barred at the time of the new legislation, we require an even clearer expression of legislative intent than that needed to effect other retroactive statutes – the statute's text must unequivocally convey the aim of reviving claims.
Since those records documented the hospital's treatment, which petitioners now claim to have been negligent, the hospital clearly obtained actual notice of the underlying facts of the claim within the statutory 90-day period ( see, Ansaldo v. City of New York, 92 A.D.2d 557; Matter of Alessi v. County of Nassau, 85 A.D.2d 725; Matter of Wade v. City of New York, 65 A.D.2d 534). In turn, "actual knowledge of the facts * * * makes it unlikely that prejudice will flow from a delay in filing" ( Matter of Beary v. City of Rye, 44 N.Y.2d 398, 412-413). Admittedly, petitioners have failed to present any reasonable explanation for their delay in serving a notice of claim.
"If a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues * * * if the time otherwise limited is less than three years, the time [within which the action must be commenced] shall be extended by the period of disability" (emphasis supplied). Also pertinent in this case is a determination by the Court of Appeals on May 4, 1978, in Matter of Beary v. City of Rye ( 44 N.Y.2d 398), and four related cases. In Beary, this State's highest court was concerned, inter alia, with how the new guidelines enacted under the amendment to section 50-e Gen. Mun. of the General Municipal Law should be applied to claims accruing prior to September 1, 1976, the effective date of the amendment.
Subsequently, in Sessa v State of New York ( 63 A.D.2d 334, 335), we stated: "Seeking a reversal of the court's order denying their motion, claimants now argue that our earlier decisions in Paul v. State of New York ( 59 A.D.2d 800) and Lewis v. State of New York ( 60 A.D.2d 675) are controlling in their situation and that, in accordance therewith, subdivision 6 must be retrospectively applied to their claim. For the reasons that will follow, however, and particularly in light of the Court of Appeals subsequent holding in Matter of Beary v City of Rye ( 44 N.Y.2d 398), we cannot agree and instead conclude that our position in Paul (supra) and Lewis (supra) must be overruled." On August 8, 1978, we granted an application for reargument in the instant case and invited counsel to direct their briefs to the applicability of our decision in Sessa (supra) to the facts of this case.
In its first opportunity to address the legislative changes pertaining to medical malpractice actions, the Court of Appeals decided Beary v. City of Rye, 44 N.Y.2d 398, 406 N.Y.S.2d 9, 377 N.E.2d 453 [1978]. One of the cases addressed by the court in Beary involved a sterilization operation where it was discovered two years later during emergency surgery for an ectopic pregnancy that one of the plaintiff's fallopian tubes had not been sutured.