Mullins v East Haven Nursing & Rehabilitation Ctr., LLC

Mullins v East Haven Nursing & Rehabilitation Ctr., LLC 2009 NY Slip Op 07673 [66 AD3d 578] October 27, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 9, 2009

Gina Mullins, as Administratix of the Estate of Leroy Hansel Mullins, Deceased, Appellant,
v
East Haven Nursing and Rehabilitation Center, LLC, Individually and Doing Business as East Haven Nursing and Rehabilitation Center, et al., Defendants, and New York City Health and Hospitals Corporation, Respondent.

—[*1] Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph of counsel), for appellant.

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

Order, Supreme Court, New York County (Stanley L. Sklar, J.), entered May 28, 2008, which granted the motion of defendant New York City Health and Hospitals Corporation to dismiss plaintiff's complaint, on the grounds that plaintiff failed to timely file a notice of claim, unanimously affirmed, without costs.

While plaintiff's decedent was still living, a notice of claim and an amended notice of claim, alleging medical malpractice, were filed more than 90 days after his last scheduled medical appointment. Thereafter, an action alleging conscious pain and suffering was brought on his behalf in the name of a guardian.

The 73-year-old decedent died on May 23, 2005. However, plaintiff had not only failed to timely file a notice of claim, but never made an application for leave to file a late notice of claim.

That plaintiff's decedent may have been under a disability (insanity) did not toll the necessity of filing a timely notice of claim; it tolled only the time in which to apply for leave to serve a late notice of claim (see Noel v Shahbaz, 274 AD2d 381, 382 [2000]). Even with the toll, plaintiff's time to seek leave to serve a late notice expired, at the latest, one year and 90 days after decedent's death, or August 21, 2006. Having failed to move within that time, the IAS court was without discretion to excuse the failure to file a notice of claim within 90 days of the alleged malpractice, and the complaint alleging conscious pain and suffering was properly [*2]dismissed (see Pierson v City of New York, 56 NY2d 950 [1982]; McGarty v City of New York, 44 AD3d 447 [2007]). Concur—Mazzarelli, J.P., Andrias, Moskowitz, Renwick and Richter, JJ.