Opinion
2018–11011 2018-14342 Index No. 705654/17
09-23-2020
Rashawn WATTS, etc., appellant, v. CITY OF NEW YORK, et al., defendants, New York City Health and Hospitals Corporation, respondent.
Rhonda Hill Wilson, New York, NY (Michael Dachs of counsel), for appellant. James E. Johnson, Corporation Counsel, New York, NY (Jeremy W. Shweder and Susan Paulson of counsel), for respondent.
Rhonda Hill Wilson, New York, NY (Michael Dachs of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York, NY (Jeremy W. Shweder and Susan Paulson of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS-RADIX, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for medical malpractice, negligence, and wrongful death, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered July 17, 2018, and (2) an order of the same court entered October 31, 2018. The order entered July 17, 2018, insofar as appealed from, granted the motion of the defendant New York City Health and Hospitals Corporation to dismiss the complaint insofar as asserted against it for failure to serve a timely notice of claim. The order entered October 31, 2018, denied the plaintiff's motion pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim on the defendant New York City Health and Hospitals Corporation.
ORDERED that the order entered July 17, 2018, is affirmed insofar as appealed from; and it is further,
ORDERED that the order entered October 31, 2018, is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the respondent.
The plaintiff's decedent died on May 12, 2016, at nonparty Queens Hospital Center, where the decedent had previously undergone surgery for a perforated ulcer. On July 27, 2016, the Surrogate's Court issued letters of limited administration for the decedent's estate to the plaintiff. In April 2017, the plaintiff commenced the instant action against, among others, the defendant New York City Health and Hospitals Corporation (hereinafter HHC), asserting causes of action, inter alia, to recover damages for medical malpractice, conscious pain and suffering, and wrongful death. In its answer, HHC asserted, as a fifth affirmative defense, that the action "was not commenced within the time specified in Section 7401 of the Unconsolidated Laws of New York State," and as an eighth affirmative defense, that the complaint failed to state a cause of action "because it fails to meet the requirements of Section 7401 of the Unconsolidated Laws of New York State." HHC subsequently moved to dismiss the complaint insofar as asserted against it based on the plaintiff's failure to serve a timely notice of claim or seek leave of the court to serve a late notice of claim within the applicable statute of limitations. The plaintiff opposed the motion. By order entered July 17, 2018, the Supreme Court granted the motion. Thereafter, the plaintiff moved pursuant to General Municipal Law § 50–e(5) "to extend time" to serve a late notice of claim on HHC. HHC opposed the motion. By order entered October 31, 2018, the Supreme Court denied the plaintiff's motion as moot, inasmuch as the action had been dismissed as to HHC and the plaintiff had not moved to vacate the prior order of dismissal. The plaintiff appeals from the orders.
Service of a notice of claim within 90 days after accrual of a tort claim is a condition precedent to commencing an action against a public corporation such as the HHC (see McKinney's Uncons Laws of N.Y. § 7401[2] [New York City Health and Hospitals Corporation Act § 20(2), as added by L 1969, ch 1016, § 1, as amended by L 1990, ch 804, § 122]; General Municipal Law § 50–e[1][a] ; Scantlebury v. New York City Health & Hosps. Corp., 4 N.Y.3d 606, 609, 797 N.Y.S.2d 394, 830 N.E.2d 292 ). However, with respect to a wrongful death cause of action, the 90 days runs from the appointment of a representative of the decedent's estate (see General Municipal Law § 50–e[1][a] ).
As the Court of Appeals has "long recognized," the City of New York and HHC are separate entities for purposes of a notice of claim ( Scantlebury v. New York City Health & Hosps. Corp., 4 N.Y.3d at 611, 797 N.Y.S.2d 394, 830 N.E.2d 292 ; see Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d 662, 665–666, 382 N.Y.S.2d 18, 345 N.E.2d 561 ). Accordingly, to the extent the plaintiff maintained that he served a notice of claim upon the Comptroller of the City of New York, this was insufficient to constitute service upon HHC (see Scantlebury v. New York City Health & Hosps. Corp., 4 N.Y.3d at 613, 797 N.Y.S.2d 394, 830 N.E.2d 292 ). General Municipal Law § 50–e(5) permits a court to extend the time to serve a notice of claim. In determining whether to grant such an extension, the court must consider various factors, of which the most important is whether the public corporation acquired actual notice of the essential facts constituting the claim within 90 days after the accrual of the claim or within a reasonable time thereafter (see Brunson v. New York City Health & Hosps. Corp., 144 A.D.3d 854, 855–856, 42 N.Y.S.3d 34 ). As a matter of law, a court only has the discretionary authority to allow the filing of a late notice of claim within the statute of limitations period, unless the limitations period has been tolled (see General Municipal Law § 50–e[5] ; Pierson v. City of New York, 56 N.Y.2d 950, 453 N.Y.S.2d 615, 439 N.E.2d 331 ). An action against a public corporation to recover damages for medical malpractice or conscious pain and suffering must be commenced within one year and 90 days after the accrual of the cause of action (see McKinney's Uncons Laws of N.Y. § 7401[2] ; General Municipal Law § 50–i[1][c] ; CPLR 217–a ; Cherise v. Braff, 50 A.D.3d 724, 726, 855 N.Y.S.2d 233 ). An action to recover damages for wrongful death must be commenced within two years after the death (see General Municipal Law § 50–i[1][c] ; Public Authorities Law § 2981 ; EPTL 5–4.1[1] ; Collins v. City of New York, 55 N.Y.2d 646, 446 N.Y.S.2d 258, 430 N.E.2d 1311 ).
Here, even if the plaintiff's opposition to HHC's dismissal motion, which was filed by the plaintiff on June 11, 2018, is deemed an application to extend the time to serve a notice of claim pursuant to General Municipal Law § 50–e(5), the Supreme Court lacked authority to grant leave to serve a late notice of claim or to deem the notice of claim timely served nunc pro tunc (see General Municipal Law § 50–e[5] ), absent a finding of an equitable estoppel (see Siahaan v. City of New York, 123 A.D.2d 620, 506 N.Y.S.2d 777 ). The statute of limitations on the causes of action alleging medical malpractice and conscious pain and suffering expired on August 10, 2017, which was 1 year and 90 days after the decedent's death on May 12, 2016 (see Argudo v. New York City Health & Hosps. Corp., 81 A.D.3d 575, 916 N.Y.S.2d 143 ; Macias v. City of New York, 201 A.D.2d 541, 607 N.Y.S.2d 716 ), and HHC's dismissal motion was filed on May 24, 2018, which was beyond the two-year limitations period for the wrongful death cause of action (see Jones v. City of New York, 300 A.D.2d 359, 751 N.Y.S.2d 522 ). Accordingly, the court was without authority or discretion as of June 11, 2018, to grant an application for leave to serve a late notice of claim.
While the doctrine of equitable estoppel permits a court, under appropriate circumstances, to extend a claimant's time to serve a late notice of claim beyond the limitations period (see Konner v. New York City Tr. Auth., 143 A.D.3d 774, 776, 39 N.Y.S.3d 475 ), here, there is no evidence in the record demonstrating that HHC misled the plaintiff or discouraged him from serving a timely notice of claim so as to support a finding of equitable estoppel (see Wade v. New York City Health & Hosps. Corp., 16 A.D.3d 677, 793 N.Y.S.2d 68 ). Furthermore, there is no indication in the record that the plaintiff relied upon any alleged act or omission of HHC or that such reliance caused the plaintiff to change his position to his detriment or prejudice (see Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d at 668, 382 N.Y.S.2d 18, 345 N.E.2d 561 ; Matter of Lubin v. City of New York, 148 A.D.3d 898, 900, 50 N.Y.S.3d 405 ). Contrary to the plaintiff's contention, HHC's participation in pretrial discovery did not preclude it from raising the untimeliness of the notice of claim (see Barnaman v. New York City Health & Hosps. Corp., 90 A.D.3d 588, 934 N.Y.S.2d 443 ; Wade v. New York City Health & Hosps. Corp., 16 A.D.3d at 677, 793 N.Y.S.2d 68 ; cf. Konner v. New York City Tr. Auth., 143 A.D.3d at 777, 39 N.Y.S.3d 475 ).
Accordingly, we agree with the Supreme Court's determination to grant HHC's motion to dismiss the complaint insofar as asserted against it on the ground that the plaintiff failed to timely serve a notice of claim (see Moroz v. City of New York, 165 A.D.3d 779, 83 N.Y.S.3d 300 ; Ibarra v. New York City Health & Hosps. Corp. [Woodhull Med. & Mental Health Ctr.], 37 A.D.3d 660, 830 N.Y.S.2d 580 ; Urena v. New York City Health & Hosps. Corp., 35 A.D.3d 446, 825 N.Y.S.2d 529 ). Likewise, we agree with the court's determination to deny the plaintiff's motion pursuant to General Municipal Law § 50–e(5).
RIVERA, J.P., AUSTIN, HINDS–RADIX and CHRISTOPHER, JJ., concur.