Hazell v. New York City Health & Hospitals Corp.

290 A.D.2d 533, 736 N.Y.S.2d 608, 2002 N.Y. App. Div. LEXIS 767

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 2002
• Status: Published

Opinion

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Patterson, J.), dated March 9, 2001, which granted the motion of the defendants New York City Health & Hospitals Corp. and Kings County Hospital to dismiss the complaint insofar as asserted against them for failure to properly serve a notice of claim.

Ordered that the order is affirmed, with costs.

Service of a notice of claim upon the respondent New York City Health & Hospitals Corp. (hereinafter HHC) is a condition precedent to the commencement of a tort action against it and its member hospitals (see, General Municipal Law § 50-e; McKinney’s Uncons Laws of NY § 7401; Davidson v Bronx Mun. Hosp., 64 NY2d 59, 61). Contrary to the plaintiffs contention, her service of a notice of claim upon the Office of the Comptroller of the City of New York was insufficient to constitute service upon the HHC (see, Henderson v City of New York, 259 AD2d 401; Stallworth v New York City Health & Hosps. Corp., 243 AD2d 704; Oxley v City of New York, 240 AD2d 643; cf., Viruet v City of New York, 97 NY2d 171). Accordingly, the Supreme Court properly granted the respondents’ motion to dismiss the complaint insofar as asserted against them for failure to properly serve a notice of claim. Krausman, J.P., Luciano, Adams and Townes, JJ., concur.