IN RE: Richard G. McCOY

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

IN RE: Richard G. McCOY, et al., appellants, v. CITY OF NEW YORK, et al., respondents.

Decided: September 27, 2004

DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, WILLIAM F. MASTRO, and STEVEN W. FISHER, JJ. Walter G. Alton, Jr. & Associates, P.C., New York, N.Y., for appellants. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and Stephen J. McGrath of counsel), for respondents.

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Kings County (Patterson, J.), dated May 7, 2003, as, upon determining that the continuous treatment doctrine was not applicable, in effect, denied that branch of their motion which was for leave to serve a late notice of claim with respect to the causes of action accruing before December 4, 2001, and (2) so much of an order of the same court dated January 22, 2004, as denied that branch of their motion which was for leave to renew that branch of the prior motion which was for leave to serve a late notice of claim.

ORDERED that the order dated May 7, 2003, is reversed insofar as appealed from, on the law, and the matter is remitted to the Supreme Court, Kings County, for further proceedings including resolution of all factual issues regarding applicability of the continuous treatment doctrine and for a new determination thereafter of that branch of the motion which was for leave to serve a late notice of claim with respect to the causes of action accruing before December 4, 2001;  and it is further,

ORDERED that the appeal from the order dated January 22, 2004, is dismissed as academic;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The plaintiffs commenced this action to recover damages for medical malpractice and loss of services.   On March 4, 2003, they moved, inter alia, for leave to serve a late notice of claim.   The defendants did not oppose the motion to the extent that the relief granted was limited by General Municipal Law § 50-i to “alleged negligence or malpractice that occurred on or after December 4, 2001, the date one year and 90 days before this application was made.” The defendants did not identify which, if any, of the plaintiffs' causes of action might be rendered untimely by this limitation.   In reply, the plaintiffs asserted that the grant of relief should not be so limited because alleged acts and/or omissions that occurred before the proposed period of limitation were part of a continuous course of treatment.   By order dated May 7, 2003, the Supreme Court, inter alia, granted that branch of the motion which was for leave to serve a late notice of claim “to the extent it relates to claims arising on or after December 4, 2001,” and determined that the continuous treatment doctrine was not applicable.   We reverse insofar as appealed from.

 A motion for leave to serve a late notice of claim must be made within one year and 90 days of when the cause of action accrues (see General Municipal Law §§ 50-e, 50-i;  Evans v. Brookdale Hosp. Med. Ctr., 194 A.D.2d 642, 599 N.Y.S.2d 84).   This period cannot be extended by the court (see Pierson v. City of New York, 56 N.Y.2d 950, 453 N.Y.S.2d 615, 439 N.E.2d 331;  Noel v. Shahbaz, 274 A.D.2d 381, 711 N.Y.S.2d 752).   Thus, the Supreme Court properly granted that branch of the plaintiffs' motion which was for leave to serve a late notice of claim only as to the causes of action accruing on or after December 4, 2001.   However, the Supreme Court erred in determining that the continuous treatment doctrine was not applicable.   Under the doctrine, a notice of claim period does not begin to run until “the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint” (Borgia v. City of New York, 12 N.Y.2d 151, 155, 237 N.Y.S.2d 319, 187 N.E.2d 777 [emphasis added];  see Young v. New York City Health and Hosps. Corp., 91 N.Y.2d 291, 296, 670 N.Y.S.2d 169, 693 N.E.2d 196;  Couch v. County of Suffolk, 296 A.D.2d 194, 746 N.Y.S.2d 187).   Here, there exist questions of fact as to whether the doctrine is applicable (see Young v. New York City Health and Hosps. Corp., supra;  Venson v. Daun, 277 A.D.2d 53, 717 N.Y.S.2d 6;  Keith v. Schulman, 265 A.D.2d 380, 696 N.Y.S.2d 514;  Adams v. Frankel, 242 A.D.2d 595, 662 N.Y.S.2d 98).

In light of this determination, the Supreme Court's denial of that branch of the motion which was for leave to renew is academic.

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