ZARATE v. NASSAU COUNTY MEDICAL CENTER

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

Kathryn ZARATE, respondent, v. NASSAU COUNTY MEDICAL CENTER, et al., appellants.

Decided: July 19, 2004

FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES, and REINALDO E. RIVERA, JJ. Lorna B. Goodman, County Attorney, Mineola, N.Y. (Mary Elizabeth Ostermann of counsel), for appellants. Alan J. Rich, LLC, New York, N.Y., for respondent.

In an action, inter alia, to recover damages for a violation of Executive Law § 296, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Franco, J.), dated October 2, 2003, as denied their motion to dismiss the complaint pursuant to CPLR 3211(a)(2) and (7), and, in effect, granted the plaintiff leave to serve a late notice of claim.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint is dismissed.

 The defendants' motion to dismiss the complaint should have been granted because the plaintiff failed to serve a timely notice of claim (see Mills v. County of Monroe, 59 N.Y.2d 307, 464 N.Y.S.2d 709, 451 N.E.2d 456, cert. denied 464 U.S. 1018, 104 S.Ct. 551, 78 L.Ed.2d 725;  Sebastian v. New York City Health & Hosps. Corp., 221 A.D.2d 294, 634 N.Y.S.2d 114).   A notice of claim was required because the plaintiff sought only to vindicate her individual interests, in the form of money damages, for an alleged violation of her personal rights (see Executive Law § 296;  County Law § 52 [1];  General Municipal Law §§ 50-e, 50-i;  Roens v. New York City Tr. Auth., 202 A.D.2d 274, 609 N.Y.S.2d 6).   Moreover, the Supreme Court had no authority to permit late service of the notice of claim more than five years after the accrual date of the plaintiff's claim, in January 1998 (see General Municipal Law § 50-e[5];  see also Pierson v. City of New York, 56 N.Y.2d 950, 453 N.Y.S.2d 615, 439 N.E.2d 331;  McSherry v. Hawthorne School, 246 A.D.2d 517, 667 N.Y.S.2d 765;  Piontka v. Suffolk County Police Dept., 202 A.D.2d 409, 608 N.Y.S.2d 503).

The plaintiff's remaining contentions are without merit.

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