De La Cruz v. City of New York

Appellate Division of the Supreme Court of New York

De La Cruz v. City of New York

221 A.D.2d 168, 633 N.Y.S.2d 145, 1995 N.Y. App. Div. LEXIS 10743

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 2, 1995

StatusPublished

Cited by8 cases

This text of 221 A.D.2d 168 (De La Cruz v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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De La Cruz v. City of New York, 221 A.D.2d 168, 633 N.Y.S.2d 145, 1995 N.Y. App. Div. LEXIS 10743 (N.Y. Ct. App. 1995).

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Opinion

—Resettled order, Supreme Court, Bronx County (Douglas McKeon, J.), entered September 26, 1994, which, inter alia, granted the motion of [169]*169defendants City of New York and New York City Health and Hospitals Corp. to dismiss the complaint, unanimously affirmed, without costs.

As plaintiffs did not seek to amend the notice of claim within the one-year-and-90-day period of limitations, the complaint was properly dismissed (Pierson v City of New York, 56 NY2d 950). Plaintiffs’ effort to change the name of the allegedly negligent hospital from that designated in the original notice of claim, more than 90 days after the cause of action had accrued (but before the one-year-and-90-day period of limitations had expired), constitutes an attempt to add a new claim and thus, permission to file a late notice of claim was necessary (see, Capalbo v New York City Health & Hosps. Corp., 147 AD2d 362; see also, Bourguignon v City of New York, 157 AD2d 644). Hence, even if the May 9,1983 "notice” were intended to be an amended notice of claim, it is a nullity as it was served upon defendants without leave of court (Chikara v City of New York, 10 AD2d 862, lv denied 11 AD2d 688, appeal dismissed 8 NY2d 1014). Concur—Sullivan, J. P., Ellerin, Ross, Tom and Mazzarelli, JJ.

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—Resettled order, Supreme Court, Bronx County (Douglas McKeon, J.), entered September 26, 1994, which, inter alia, granted the motion of [169]*169defendants City of New York and New York City Health and Hospitals Corp. to dismiss the complaint, unanimously affirmed, without costs.

As plaintiffs did not seek to amend the notice of claim within the one-year-and-90-day period of limitations, the complaint was properly dismissed (Pierson v City of New York, 56 NY2d 950). Plaintiffs’ effort to change the name of the allegedly negligent hospital from that designated in the original notice of claim, more than 90 days after the cause of action had accrued (but before the one-year-and-90-day period of limitations had expired), constitutes an attempt to add a new claim and thus, permission to file a late notice of claim was necessary (see, Capalbo v New York City Health & Hosps. Corp., 147 AD2d 362; see also, Bourguignon v City of New York, 157 AD2d 644). Hence, even if the May 9,1983 "notice” were intended to be an amended notice of claim, it is a nullity as it was served upon defendants without leave of court (Chikara v City of New York, 10 AD2d 862, lv denied 11 AD2d 688, appeal dismissed 8 NY2d 1014). Concur—Sullivan, J. P., Ellerin, Ross, Tom and Mazzarelli, JJ.

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Bluebook (online)

221 A.D.2d 168, 633 N.Y.S.2d 145, 1995 N.Y. App. Div. LEXIS 10743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-la-cruz-v-city-of-new-york-nyappdiv-1995.

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