STALLWORTH v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION

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Supreme Court, Appellate Division, Second Department, New York.

Ollie STALLWORTH, etc., Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent.

Decided: October 27, 1997

Before ROSENBLATT, J.P., and RITTER, KRAUSMAN and FLORIO, JJ. Henry R. Simon, White Plains, for appellant. Paul A. Crotty, Corporation Counsel, New York City (Barry P. Schwartz and Margaret G. King, of counsel), for respondent.

In an action to recover damages for medical malpractice and wrongful death, the plaintiff appeals from an order of the Supreme Court, Kings County (Bellard, J.), entered October 7, 1996, which granted the defendant's motion to dismiss the complaint for failure to serve a timely notice of claim.

ORDERED that the order is affirmed, with costs.

 Service of a notice of claim pursuant to General Municipal Law § 50-e and McKinney's Unconsolidated Laws of N.Y. § 7401 is a condition precedent to a lawsuit against a municipal corporation, in the same way as is service of a summons on the municipal corporation (see, Davidson v. Bronx Municipal Hosp., 64 N.Y.2d 59, 61, 484 N.Y.S.2d 533, 473 N.E.2d 761;  Barchet v. New York City Tr. Auth., 20 N.Y.2d 1, 6, 281 N.Y.S.2d 289, 228 N.E.2d 361).   Service of the notice of claim on the Comptroller of the City of New York is insufficient to constitute service on the defendant New York City Health and Hospitals Corporation (hereinafter NYCHHC), the proper party to be served (see, Kroin v. City of New York, 210 A.D.2d 95, 620 N.Y.S.2d 339;  Ceely v. New York City Health & Hosps. Corp., 162 A.D.2d 492, 556 N.Y.S.2d 694;   Campbell v. City of New York, 203 A.D.2d 504, 611 N.Y.S.2d 248).   The lack of service here was not cured by the participation of NYCHHC in the General Municipal Law § 50-h hearing or by the provisions of General Municipal Law § 50-e(3)(c) (see, Kroin v. City of New York, supra, at 96, 620 N.Y.S.2d 339;  Ceely v. New York City Health & Hosps. Corp., supra, at 493, 556 N.Y.S.2d 694).

MEMORANDUM BY THE COURT.

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