Bulger v. Nassau County Medical Center

266 A.D.2d 212, 697 N.Y.S.2d 345, 1999 N.Y. App. Div. LEXIS 11101

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 1, 1999
• Status: Published

Opinion

—In a proceeding for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5), the appeal is from an order of the Supreme Court, Nassau County (Phelan, J.), dated September 29, 1998, which, inter alia, deemed the petitioner’s notice of claim timely served.

Ordered that the order is reversed, on the law, with costs, and the petitioner’s application for leave to serve a late notice of claim is denied.

The Supreme Court incorrectly concluded that the continuous treatment doctrine applies to the facts of this case. Where the gap between treatments “exceed[s] the applicable Statute of Limitations period, the continuity of treatment [is] broken”, and the continuous treatment doctrine does not apply (Michaels-Dailey v Shamoian, 245 AD2d 430, 431; Concha v Local 1115 Empls. Union Welfare Trust Fund, 216 AD2d 348, 350; Arias v Southside Hosp., 203 AD2d 220). In the instant case, the petitioner did not receive treatment from Nassau County Medical Center (hereinafter NCMC) for her condition between July 1996, and January 1998, a period which exceeds the applicable Statute of Limitations of one year and 90 days (see, General Municipal Law § 50-i; Castelli v Nassau County Med. Ctr., 244 AD2d 379).

Additionally, because the petitioner did not seek leave to serve NCMC with a late notice of claim until May 1998, well after the Statute of Limitations had expired, the Supreme Court was without authority to grant the petitioner’s application (see, General Municipal Law § 50-e [5]; Pierson v City of New York, 56 NY2d 950, 954; Diaz v City Hosp. Ctr., 241 AD2d 507; Greco v Incorporated Vil. of Freeport, 223 AD2d 674, 675). Mangano, P. J., Ritter, Joy, McGinity and Smith, JJ., concur.