Benitez v. Board of Higher Education

308 A.D.2d 410, 765 N.Y.S.2d 22, 2003 N.Y. App. Div. LEXIS 9916

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 2003
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Stanley Green, J.), entered March 3, 2003, which, inter alia, granted defendant’s cross motion to dismiss the complaint for plaintiffs failure to file a timely notice of claim pursuant to General Municipal Law § 50-e, unanimously affirmed, without costs.

The court properly held plaintiffs claim to be one for medical malpractice based upon the alleged failure to take a proper medical history (see Bleiler v Bodnar, 65 NY2d 65, 72 [1985]), and that plaintiffs notice of claim, filed more than 90 days subsequent to the alleged malpractice, was untimely. The court also properly concluded that it was without power to grant an extension of time for plaintiff to file a notice of claim since the applicable statutory period had expired (see General Municipal Law § 50-e [5]). While, pursuant to CPLR 214-c (3), a claim arising from the latent effects of exposure to an inherently toxic substance (see Blanco v American Tel. & Tel. Co., 90 NY2d 757, 767, 772 [1997]) is not deemed to accrue for notice of claim purposes until the discovery of the injury or the date when the injury could have been discovered with reasonable diligence, whichever is earlier, this provision is of no avail to plaintiff since her injury did not arise from exposure to an inherently toxic substance but rather was allegedly attributable to the negligent administration of untainted MMR vaccine. Concur— Nardelli, J.P., Mazzarelli, Andrias, Ellerin and Marlow, JJ.