YOO v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (1997)

Order, Supreme Court, New York County (Stanley Sklar, J.), entered October 31, 1996, which, in an action for wrongful death and conscious pain and suffering allegedly caused by the medical malpractice of defendants, New York City Health and Hospitals Corporation and one of its staff physicians, granted defendants' motion to dismiss the causes of action for conscious pain and suffering, unanimously affirmed, without costs.

 The causes of action for conscious pain and suffering were properly dismissed on the ground that the notice of claim was not served within 90 days of accrual, which was, at the latest, the date of death, and no motion for leave to serve a late notice of claim was made within the one year and 90-day Statute of Limitations (McKinney's Uncons. Laws of N.Y. § 7401 [2] [New York City Health & Hospitals Corporation Act § 20(2); L.1969, ch. 1016, § 1, as amended];  General Municipal Law § 50-e[1][a];  [5];  § 50-i;  see, Rodriguez v. City of New York, 169 A.D.2d 532, 564 N.Y.S.2d 384;  Wieder v. New York City Health & Hosp. Corp., 183 A.D.2d 677, 586 N.Y.S.2d 490).   In Wieder, supra, we specifically rejected the contention that causes of action for wrongful death and conscious pain and suffering are so inextricably intertwined in the context of medical malpractice that the notice of claim time requirements applicable to the former should govern the latter, and we reject plaintiffs' argument that the 1990 amendment to Unconsolidated Laws § 7401(2) (L.1990, ch. 804, § 122), excepting “an action for wrongful death” from the usual 90-days-after-accrual rule, requires acceptance of that contention.   The “materially separate and distinct” nature of causes of action for wrongful death and conscious pain and suffering is too well established (see, Ratka v. St. Francis Hosp., 44 N.Y.2d 604, 609-610, 407 N.Y.S.2d 458, 378 N.E.2d 1027) to accept that the Legislature, because it used the word “action” instead of “cause of action”, intended the exception to apply not just to wrongful death causes of action but to all causes of action contained in an action that includes a wrongful death cause of action.   We have considered plaintiff's other arguments and find them to be without merit, including the argument that a timely notice of claim was not a condition precedent to commencement of the action against the treating physician (see, Unconsolidated Laws § 7401[6];  General Municipal Law § 50-e[1][b];  § 50-k;  De Gradi v. Coney Is. Med. Group, 172 A.D.2d 582, 568 N.Y.S.2d 412, lv. denied 78 N.Y.2d 860, 576 N.Y.S.2d 218, 582 N.E.2d 601), and that to hold that it is would be violative of the State constitutional prohibition against legislative abrogation of “[t]he right of action now existing to recover damages for injuries resulting in death” (N.Y. Const. art. 1, § 16;  see, Miller v. Miller, 22 N.Y.2d 12, 18, 290 N.Y.S.2d 734, 237 N.E.2d 877).

MEMORANDUM DECISION.