AXISA v. NEW YORK CITY HEALTH HOSPITALS CORPORATION (2024)

Order, Supreme Court, New York County (John J. Kelley, J.), entered on or about January 20, 2023, which denied plaintiff's motion for leave to serve a late notice of claim pursuant to General Municipal Law § 50–e and sua sponte dismissed the complaint, and order, same court and Justice, entered June 28, 2023, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to renew, unanimously affirmed, without costs.

The court providently exercised its discretion by denying plaintiff's motion for leave to file a late notice of claim on defendants New York City Health & Hospitals Corporation (HHC) and Bellevue Hospital (see General Municipal Law § 50–e[5]).  The court properly determined that it could not grant leave as to the medical malpractice and negligence claims alleged in the complaint because the one-year and 90–day statute of limitations for those claims expired before the motion was made (see Pierson v. City of New York, 56 N.Y.2d 950, 955–956, 453 N.Y.S.2d 615, 439 N.E.2d 331 [1982];  Young v. New York City Health & Hosps. Corp., 147 A.D.3d 509, 509, 48 N.Y.S.3d 316 [1st Dept. 2017]).  Moreover, the complaint does not expressly assert a cause of action for wrongful death and fails to anywhere allege the required element that the decedent's estate had distributees who could have suffered pecuniary loss by reason of her death (see James v. Middletown Community Health Ctr., Inc., 278 A.D.2d 280, 281, 718 N.Y.S.2d 358 [2d Dept. 2000]).

The court also providently exercised its discretion in denying renewal.  The 2021 complaint was available previously, and the claim letters, which were submitted on the original motion, would not change the prior determination (see CPLR 2221[e][2]).  Based on our findings, we need not reach the parties’ additional arguments.