Santos v City of New York

Santos v City of New York 2007 NY Slip Op 01983 [38 AD3d 302] March 13, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

Maria Santos, Appellant,
v
City of New York et al., Respondents.

—[*1] Castro & Karten LLP, New York (Craig H. Snyder of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Victoria Scalzo of counsel), for respondents.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered November 3, 2005, which granted defendants' motion to the extent of dismissing the second and fifth through eighth causes of action in the complaint, unanimously modified, on the law, the second cause of action reinstated insofar as it applies to the decedent's conscious pain and suffering on June 9, 1997, dismissal of the eighth cause of action vacated with leave to replead that cause, and otherwise affirmed, without costs.

Defendants concede that plaintiff's notice of claim was timely as to her decedent's pain and suffering on the date of his death. We modify to reinstate that portion of the second cause of action, and affirm the dismissal of any earlier claims as untimely (see Jae Woo Yoo v New York City Health & Hosps. Corp., 239 AD2d 267 [1997]). We further modify to vacate the dismissal of the eighth cause of action under 42 USC § 1983, and grant plaintiff leave to replead that cause in light of defendants' failure to provide requested discovery regarding their customs, policies and procedures.

We have considered plaintiff's remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Marlow, Buckley, Sweeny and Kavanagh, JJ.