McGRIFF v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (2007)

In an action to recover damages for medical malpractice, etc., the defendants appeal from an order of the Supreme Court, Queens County (Kitzes, J.), entered March 8, 2006, which denied their motion to dismiss the complaint for failure to serve a timely notice of claim.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion to dismiss the complaint for failure to serve a timely notice of claim is granted.

Prior to commencing this action to recover damages for medical malpractice, the plaintiffs neither served a timely notice of claim upon the defendants, as required by statute, nor sought leave, within the relevant one-year-and-90-day limitations period, to serve a late notice of claim (see McKinney's Unconsolidated Laws of N.Y. § 7401[2];  General Municipal Law §§ 50-e[5], 50-i;  Pierson v. City of New York, 56 N.Y.2d 950, 453 N.Y.S.2d 615, 439 N.E.2d 331;  Urena v. New York City Health & Hosps. Corp., 35 A.D.3d 446, 825 N.Y.S.2d 529;  Maxwell v. City of New York, 29 A.D.3d 540, 815 N.Y.S.2d 133). Thus, the Supreme Court should have granted the defendants' motion to dismiss the complaint.

The plaintiffs' contention, raised before the Supreme Court, that the relevant period of limitations was tolled by the continuous treatment doctrine, is without merit (see Allende v. New York City Health & Hosps. Corp., 90 N.Y.2d 333, 660 N.Y.S.2d 695, 683 N.E.2d 317).

The plaintiffs' remaining contentions are without merit (see e.g. Wade v. New York City Health & Hosps. Corp., 16 A.D.3d 677, 793 N.Y.S.2d 68;  Cappadonna v. New York City Tr. Auth., 187 A.D.2d 691, 590 N.Y.S.2d 274).