Evans v. Brookdale Hospital Medical Center

194 A.D.2d 642, 599 N.Y.S.2d 84, 1993 N.Y. App. Div. LEXIS 6135

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 1993
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants Kings County Hospital and Bellevue Hospital Center appeal from an order of the Supreme Court, Kings County (Levine, J.), dated March 21, 1990, which denied their motion to dismiss the complaint because the plaintiff failed to serve a timely notice of claim and granted the plaintiff’s cross motion for leave nunc pro tunc to serve a late notice of claim.

Ordered that the order is reversed, on the law, without costs or disbursements, the appellants’ motion is granted, and the plaintiff’s cross motion denied.

A motion for leave to serve a late notice of claim must be brought within the applicable Statute of Limitations, which, unless tolled, is one year and 90 days from the date upon which the claim allegedly accrued (see, Martinez v New York City Health & Hosps. Corp., 137 AD2d 503). The notice of cross motion for leave to serve a late notice of claim is dated January 31, 1990, and the alleged injury occurred in April 1982. Approximately eight years passed between the alleged injury and the plaintiff’s cross motion. Thus, the cross motion for leave nunc pro tunc to serve a late notice of claim was clearly untimely. Balletta, J. P., Rosenblatt, Miller and Joy, JJ., concur.