Latonero v. City of New York

276 A.D.2d 430, 717 N.Y.S.2d 516, 2000 N.Y. App. Div. LEXIS 10767

Opinion

Appeal from order, Supreme Court, Bronx County (Douglas McKeon, J.), entered on or about December 15, 1999, which, in an action to recover for personal injuries allegedly caused by defendant municipal hospital’s negligence, denied plaintiffs motion to reargue defendants’ previously granted motion to dismiss the complaint for failure to serve a notice of claim on defendant New York City Health and Hospitals Corporation, unanimously dismissed, without costs.

Plaintiff’s motion for “reargument, renewal, reconsideration or otherwise” of the prior order dismissing her complaint was clearly in the nature of reargument, and, as such, the order denying it is nonappealable (see, Lee v Eglisau Estates, 255 AD2d 239). Were we to reach the merits, we would affirm upon findings that no notice of claim was ever served on defendant New York City Health and Hospitals Corporation, no demand was ever made by such defendant to examine plaintiff pursuant to General Municipal Law § 50-h, as opposed to CPLR 3107, and no request to serve a late notice of claim on such defendant was ever made by plaintiff before the expiration of the Statute of Limitations (compare, Mercado v New York City Health & Hosps. Corp., 247 AD2d 55). Concur — Rosenberger, J. P., Nardelli, Ellerin, Lerner and Friedman, JJ.