Matter of Fiore v Nassau Health Care Corp.

[*1] Matter of Fiore v Nassau Health Care Corp. 2006 NY Slip Op 51535(U) [12 Misc 3d 1192(A)] Decided on August 3, 2006 Supreme Court, Nassau County Phelan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 3, 2006
Supreme Court, Nassau County

In the Matter of the Claim of Anthony Fiore, as Administrator of The Estate of Rosemary Sepe, Deceased, Claimant,

against

The Nassau Health Care Corporation, Respondent.



4363/06



Silberstein, Awad & Miklos, P.C.

Attorneys for Claimant

600 Old Country Road

Garden City, NY 11530

Furey, Kerley, Walsh, Matera & Cinquemani, P.C.

Attorneys for Respondent

2174 Jackson Avenue

Seaford, NY 11783

Thomas P. Phelan, J.

Motion by petitioner, Administrator of the Estate of Rosemary Sepe, for reargument of so much of this court's order dated April 26, 2006 as denied petitioner's application to file a late Notice of Claim upon respondent Nassau Health Care Corporation is granted. Upon reargument, the prior order is amended to grant leave to file the late Notice of Claim. Petitioner's Notice of Claim annexed as Exhibit "2" is deemed served nunc pro tunc upon service of a copy of this order upon counsel for respondent. Petitioner is directed to serve a copy of this order upon counsel for respondent forthwith.

On January 19, 2005, petitioner's decedent underwent hernia repair surgery while a patient at the Nassau University Medical Center, s/h/a The Nassau Health Care Corporation. She was discharged on January 20, 2005. One week later she died of complications from the surgery.

Petitioner, decedent's son, was granted Letters of Administration on January 6, 2006.

Petitioner's earlier motion, brought by Order to Show Cause dated March 15, 2006 [Mahon, J.], sought the following relief:

(1) granting leave to serve a late Notice of Claim so as to allege causes of action for conscious pain and suffering and for wrongful death;

(2) deeming the proposed Notice of Claim served nunc pro tunc; and

(3) directing that if respondent had not already conducted an examination pursuant to General Municipal Law §50(h), that it be held within 10 days after service of the order granting petitioner's application.

Respondent did not oppose branches (1) and (2) of the Order to Show Cause, instead characterizing the application as unnecessary. "Since claimant's Order to Show Cause sets forth that MR. FIORE was granted Letters of Administration on January 6, 2006, claimant has 90 days from January 6, 2006 within which to serve the Notice of Claim. The within application is therefore unnecessary" (Affirmation of Rosemary Cinquemani dated March 27, 2006, ¶4).

Respondent merely opposed that branch of petitioner's motion which sought to compel anything less than "reasonable notice" of the 50-h examination since GML 50-h (2) specifically provides that "[t]he demand shall give reasonable notice of the examination".

In reply, petitioner briefly noted that he sought an expeditious scheduling of the 50-h examination so it could be held in advance of commencement of the contemplated action and before the statute of limitations expired.

By order of this court dated April 26, 2006 [Phelan, J.], the court adopted respondent's position and denied branches (1) and (2) of petitioner's motion "as academic".

Branch (3) was denied as "there appears no basis upon which to compel respondent to conduct the [50-h examination] to which it is statutorily entitled within such an abbreviated time period." The 50-h examination has since been held.

Petitioner now seeks an order pursuant to CPLR 2221 permitting reargument of the first two branches of his prior motion. In doing so, petitioner points out that while respondent did not oppose the relief sought by petitioner regarding filing the proposed Notice of Claim, the need for court permission was not entirely "unnecessary".

GML §50-(e)(1)(a) provides that a Notice of Claim is to be served "within ninety days after the claim arises; except that in wrongful death actions, the ninety days shall run from the appointment of a representative of the decedent's estate". Thus, in Mack v. City of New York, 265 AD2d 308 [2nd Dept., 1999] the court wrote, "A cause of action to recover damages for conscious pain and suffering is materially distinct from a cause of action to recover damages for wrongful death, and plaintiffs were required to serve a Notice of Claim [*2]within 90 days of the occurrence (citations omitted)".

Since petitioner's Notice of Claim identifies both a wrongful death claim and a claim for pain and suffering, only the wrongful death claim could be considered timely asserted. Court leave was therefore required.

This court, accordingly, erred when it adopted respondent's contention that the requested relief was unnecessary and denied petitioner's request as academic. Having so found, petitioner's motion properly seeks reargument (CPLR §2221(d)(2)) as distinct from renewal (CPLR §2221(e)(2)).

Upon reconsideration, petitioner's application is granted.

Just as respondent on petitioner's original motion failed to address the merits of petitioner's request for leave to file a late Notice of Claim and to have the proposed notice deemed filed nunc pro tunc, respondent does so again.

Petitioner is accordingly granted leave to serve its Notice of Claim inclusive of the claim for conscious pain and suffering.

While a motion to renew has been held not to relate back to the time the original motion was made and will therefore be found untimely if the statute of limitations has already run (Mateo v. City of New York, 245 AD2d 25 [1st Dept., 1997]; Matter of Adams v. City of New York, 180 AD2d 629 [2nd Dept., 1992]; Matter of Asaro v. City of New York, 167 AD2d 130 [1st Dept., 1990]), expiration of the statute of limitations will not prevent consideration of a motion to reargue on the merits (see, Mateo v. City of New York, supra). Unlike renewal, reargument, once granted, results in an order which supercedes the earlier order (Betsch v. Chernashka, 265 AD2d 440, 441 [2nd Dept., 1999]). As such, petitioner's motion to reargue relates back to the March 15, 2006 Order to Show Cause (cf. Matter of Adams v. City of New York, supra).

Moreover, since the running of a statute of limitations is tolled "from the time plaintiff applies for permission to file a late Notice of Claim until the order granting that relief goes into effect" (Giblin v. Nassau County Med. Ctr., 61 NY2d 67, 68 [1984]), the statute of limitations on petitioner's claims herein was tolled from the time he brought his original application for permission until the within order granting that relief.

Respondent's attempt to place a burden on petitioner to explain why this reargument motion was brought rather than commencing a plenary action for conscious pain and suffering on behalf of decedent is disingenuous. It is apparent that the statute of limitations, having expired without a grant of leave, would be a fatal problem in such plenary action. Such result is to be [*3]avoided, for if petitioner's prior application had been correctly decided on April 26, 2006 in the first instance, the statute of limitations bar would not be an issue as time unquestionably remained to commence the plenary action. A more deserving application for reargument is difficult to conceive.

Accordingly, on reargument, the application for leave to file a late notice of claim for decedent's cause of action for conscious pain and suffering is granted.

This decision constitutes the order of the court.

Dated: AUGUST 3, 2006 THOMAS P. PHELAN

J.S.C.