KIKENBORG v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (2002)

Order, Supreme Court, New York County (Stanley Sklar, J.), entered October 12, 2000, which 1) denied plaintiffs' motion to deem abandoned defendants' underlying motion to dismiss the complaint as time-barred and granted defendants' cross motion for leave to settle an order based on the court's November 16, 1999 decision holding that plaintiff's motion to dismiss the complaint as time-barred should be granted, and 2) granted defendants' motion to dismiss the complaint as time-barred, unanimously affirmed, without costs.

 The motion court, in granting defendants' motion to dismiss the complaint, properly determined that plaintiffs' claims for wrongful death by reason of medical malpractice were barred by the 1 year and 90 day Statute of Limitations applicable to wrongful death actions against Health and Hospitals Corporation defendants at the time of the accrual of plaintiffs' claims (see, Unconsolidated Laws, former § 7401;  Brennan v. City of New York, 59 N.Y.2d 791, 793, 464 N.Y.S.2d 731, 451 N.E.2d 478).   Although the statutory period applicable to wrongful death actions against a public authority or public benefit corporation was subsequently lengthened to two years (see, Public Authorities Law § 2981), the longer statutory period was not in effect at the time plaintiffs' action accrued and thus did not inure to plaintiffs' benefit (see, Matter of Torres v. New York City Health & Hosp. Corp., 186 A.D.2d 60, 588 N.Y.S.2d 769).

 The motion court properly exercised its discretion in denying plaintiffs' motion to have defendants' motion to dismiss the complaint as time-barred deemed abandoned by reason of defendants' failure timely to settle an order upon the decision ruling in their favor on their Statute of Limitations defense.   Defendants' delay was relatively brief, and since the action was clearly time-barred, permitting it to proceed further would have been an exercise in futility (see, Russo v. City of New York, 206 A.D.2d 355, 356, 614 N.Y.S.2d 55, lv. denied 84 N.Y.2d 813, 622 N.Y.S.2d 915, 647 N.E.2d 121).

Plaintiff's remaining claims regarding the constitutionality of Public Authorities Law § 2981 are unpreserved for appellate review.   In any event, were we to review those claims, we would find them to be without merit.