Opinion
2011-12-6
Jedina BARNAMAN, appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., respondents.
Nnebe & Associates, P.C., Williamsburg, N.Y. (O. Valentine Nnebe of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Norman Corenthal of counsel), for respondents.
Nnebe & Associates, P.C., Williamsburg, N.Y. (O. Valentine Nnebe of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Norman Corenthal of counsel), for respondents.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
In an action, inter alia, to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), entered October 22, 2010, which granted the defendants' motion to dismiss the complaint for failure to serve a timely notice of claim and denied her cross motion for leave to serve a late notice of claim and to deem the notice of claim served nunc pro tunc.
ORDERED that the order is affirmed, with costs.
Service of a notice of claim within 90 days after accrual of the claim is a condition precedent to commencing an action against the defendant New York City Health and Hospitals Corporation (hereinafter HHC) ( see McKinney's Uncons Laws of N.Y. § 7401[2] [L. 1969, ch. 1016, § 1 (§ 20[2] ), 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; Argudo v. New York City Health & Hosps. Corp., 81 A.D.3d 575, 576, 916 N.Y.S.2d 143; Wade v. New York City Health & Hosps. Corp., 59 A.D.3d 528, 530, 874 N.Y.S.2d 171; Urena v. New York City Health & Hosps. Corp., 35 A.D.3d 446, 446, 825 N.Y.S.2d 529).
The plaintiff was required to serve a timely notice of claim upon HHC in connection with her action against the defendants Queens Hospital Center and Kenneth A. Nakdimen ( see Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d 662, 665, 382 N.Y.S.2d 18, 345 N.E.2d 561; DeNaro v. Rosalia, 59 A.D.3d 584, 587, 873 N.Y.S.2d 697; W.E. Rest., Inc. v. Wilson, 38 A.D.3d 762, 833 N.Y.S.2d 126; DeRise v. Kreinik, 10 A.D.3d 381, 382, 780 N.Y.S.2d 773). The plaintiff served a notice of claim upon the Comptroller of the City of New York and upon Queens Hospital Center, a medical facility operated by HHC, within 90 days after her claim accrued. The City of New York and HHC are separate entities for purposes of a notice of claim ( see 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; Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d 662, 382 N.Y.S.2d 18, 345 N.E.2d 561). Accordingly, service upon the Comptroller of the City of New York was insufficient to constitute service upon HHC, the proper party to be served ( 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; King v. Wu, 18 A.D.3d 716, 717, 797 N.Y.S.2d 499; Stallworth v. New York City Health & Hosps. Corp., 243 A.D.2d 704, 663 N.Y.S.2d 287). Furthermore, serving a notice of claim upon Queens Hospital Center did not satisfy the statutory requirements mandating notification to the proper public body or official, in this case a director or officer of HHC or the Corporation Counsel ( see McKinney's Uncons Laws of N.Y. § 7401[2]; General Municipal Law § 50–e[3][a]; Viruet v. City of New York, 97 N.Y.2d 171, 176, 738 N.Y.S.2d 2, 763 N.E.2d 1143; Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 547–548, 470 N.Y.S.2d 564, 458 N.E.2d 1241; Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d at 665, 382 N.Y.S.2d 18, 345 N.E.2d 561; Camarella v. East Irondequoit Cent. School Bd., 34 N.Y.2d 139, 142, 356 N.Y.S.2d 553, 313 N.E.2d 29; Chesney v. Board of Educ. of Union Free School Dist. No. 5, 5 N.Y.2d 1007, 185 N.Y.S.2d 263, 158 N.E.2d 125; Munroe v. Booth, 305 N.Y. 426, 113 N.E.2d 546).
The plaintiff contends that the savings provision of General Municipal Law § 50–e(3)(c) is applicable here because Queens Hospital Center forwarded the notice of claim to HHC. However, assuming that service was made upon a proper party, General Municipal Law § 50–e(3)(c) provides, in pertinent part, that service shall be valid if “the notice is actually received by a proper person” within 90 days after the claim accrued ( see 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; Munroe v. Booth, 305 N.Y. 426, 113 N.E.2d 546). The record reveals that the notice of claim was actually received by HHC's Office of Legal Affairs over three months after the 90–day statutory period expired. In the absence of evidence that the notice of claim was actually received by a proper person within 90 days after the claim accrued, service upon HHC cannot be found to be valid under General Municipal Law § 50–e(3)(c) ( see Herrera v. Duncan, 13 A.D.3d 485, 486, 787 N.Y.S.2d 88; Paladino v. Commack Union Free School Dist., 307 A.D.2d 284, 285, 763 N.Y.S.2d 628).
Contrary to the plaintiff's contention, the defendants were under no obligation to plead, as an affirmative defense, the plaintiff's failure to comply with the statutory notice of claim requirement ( see Laroc v. City of New York, 46 A.D.3d 760, 761, 847 N.Y.S.2d 677; Maxwell v. City of New York, 29 A.D.3d 540, 541, 815 N.Y.S.2d 133; Lynch v. New York City Tr. Auth., 12 A.D.3d 644, 646, 784 N.Y.S.2d 900). Furthermore, the defendants' participation in pretrial discovery did not preclude them from raising the untimeliness of the notice of claim ( see Laroc v. City of New York, 46 A.D.3d at 761, 847 N.Y.S.2d 677; Wade v. New York City Health & Hosps. Corp., 16 A.D.3d 677, 793 N.Y.S.2d 68; Hall v. City of New York, 1 A.D.3d 254, 256, 768 N.Y.S.2d 2).
Since the plaintiff failed to make a timely application pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim upon HHC, the defendants are entitled to dismissal of the complaint ( see Pierson v. City of New York, 56 N.Y.2d 950, 453 N.Y.S.2d 615, 439 N.E.2d 331; Argudo v. New York City Health & Hosps. Corp., 81 A.D.3d at 576–577, 916 N.Y.S.2d 143; Laroc v. City of New York, 46 A.D.3d 760, 847 N.Y.S.2d 677; Maxwell v. City of New York, 29 A.D.3d at 541, 815 N.Y.S.2d 133). Accordingly, the Supreme Court properly granted the defendants' motion to dismiss the complaint for failure to serve a timely notice of claim and properly denied the plaintiff's cross motion for leave to serve a late notice of claim and to deem the notice of claim served nunc pro tunc.