IN RE: Sherri R. BULGER (1999)

In a proceeding for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e(5), the appeal is from an order of the Supreme Court, Nassau County (Phelan, J.), dated September 29, 1998, which, inter alia, deemed the petitioner's notice of claim timely served.

ORDERED that the order is reversed, on the law, with costs, and the petitioner's application for leave to serve a late notice of claim is denied.

 The Supreme Court incorrectly concluded that the continuous treatment doctrine applies to the facts of this case.   Where the gap between treatments “exceed[s] the applicable Statute of Limitations period, the continuity of treatment [is] broken”, and the continuous treatment doctrine does not apply (Michaels-Dailey v. Shamoian, 245 A.D.2d 430, 431, 666 N.Y.S.2d 199;  Concha v. Local 1115 Empls. Union Welfare Trust Fund, 216 A.D.2d 348, 350, 628 N.Y.S.2d 172;  Arias v. Southside Hosp., 203 A.D.2d 220, 612 N.Y.S.2d 884).   In the instant case, the petitioner did not receive treatment from Nassau County Medical Center (hereinafter NCMC) for her condition between July 1996, and January 1998, a period which exceeds the applicable Statute of Limitations of one year and 90 days (see, General Municipal Law § 50-i;  Castelli v. Nassau County Med. Ctr., 244 A.D.2d 379, 664 N.Y.S.2d 94).

 Additionally, because the petitioner did not seek leave to serve NCMC with a late notice of claim until May 1998, well after the Statute of Limitations had expired, the Supreme Court was without authority to grant the petitioner's application (see, General Municipal Law § 50-e[5];  Pierson v. City of New York, 56 N.Y.2d 950, 954, 453 N.Y.S.2d 615, 439 N.E.2d 331;  Diaz v. City Hosp. Ctr. at Elmhurst, 241 A.D.2d 507, 661 N.Y.S.2d 528;  Greco v. Incorporated Vil. of Freeport, 223 A.D.2d 674, 675, 637 N.Y.S.2d 191).

MEMORANDUM BY THE COURT.