Opinion
March 2, 1992
Appeal from the Supreme Court, Nassau County (Roncallo, J.).
Ordered that the order is reversed, on the law, with costs, and the application is denied.
Gerard Rasmussen died on October 12, 1988, while a patient at the Nassau County Medical Center. On January 12, 1990, the plaintiff was appointed administrator of Gerard Rasmussen's estate. Thereafter, in early April 1990 the plaintiff served a notice of claim alleging wrongful death by reason of medical malpractice, and, simultaneously, moved for leave to serve a late notice of claim for the decedent's conscious pain and suffering. The wrongful death notice of claim was timely because it was served within 90 days of the plaintiff's receipt of letters of administration (see, General Municipal Law § 50-e [a]; Chattergoon v New York City Hous. Auth., 161 A.D.2d 141, affd 78 N.Y.2d 958). However, the application for leave to serve a late notice of claim with respect to pain and suffering was not, as it was made more than one year and 90 days after Gerard Rasmussen's death, that is, after expiration of the Statute of Limitations. Therefore, the court lacked the power to permit late service (Pierson v City of New York, 56 N.Y.2d 950; Bourguignon v City of New York, 157 A.D.2d 644). Thompson, J.P., Sullivan, Harwood and Balletta, JJ., concur.