VAZQUEZ v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (2001)

Judgment, Supreme Court, New York County (Stanley Sklar, J.), entered January 14, 2000, which dismissed plaintiff's complaint for wrongful death, unanimously affirmed, without costs.   Appeal from order, same court and Justice, entered September 24, 1999, which, inter alia, granted defendants' motion pursuant to CPLR 3211 to dismiss the complaint for failure to file a timely notice of claim, unanimously dismissed, without costs, as subsumed in the appeal from the ensuing January 14, 2000 judgment.

It is undisputed that plaintiff, in this medical malpractice action for wrongful death against the City and the Health and Hospitals Corporation (HHC), never filed a notice of claim for wrongful death in accordance with the requirements of McKinney's Unconsolidated Laws of New York § 7401 (New York City Health and Hospitals Corporation Act § 20 [L.1969, ch. 1016, § 1, as amended] ) and General Municipal Law §§ 50-e and 50-i.   To remedy this otherwise fatal defect, plaintiff seeks to amend the notice of claim filed by the decedent on August 4, 1994, wherein the latter alleged that HHC had been negligent in failing to diagnose and treat her ovarian tumor.   In this connection, plaintiff contends that the decedent's notice of claim was timely since the statutorily allotted 90-day period for filing a notice of claim was tolled by reason of the decedent's continuous treatment by defendant Health and Hospitals Corporation (see, Young v. New York City Health & Hosps. Corp., 91 N.Y.2d 291, 295, 670 N.Y.S.2d 169, 693 N.E.2d 196).   However, the decedent's ongoing general relationship with the clinic for routine periodic health examinations was insufficient to satisfy the continuous treatment doctrine's requirement that there be continuous treatment of the condition upon which the allegations of medical malpractice are based (see, Young v. New York City Health & Hosps. Corp., supra, at 296, 670 N.Y.S.2d 169, 693 N.E.2d 196).