Ryan v. City of New York

251 A.D.2d 185, 675 N.Y.S.2d 862, 1998 N.Y. App. Div. LEXIS 7384

Opinion

—Order, Supreme Court, New York County (Louis York, J.), entered May 15, 1997, which, in an action by plaintiff employee against defendant employer and its physicians for failure to inform plaintiff of their differential diagnosis of Lyme disease, insofar as appealed from, granted defendants’ motion to dismiss the action for failure to serve a timely notice of claim, unanimously affirmed, without costs.

Plaintiff’s May 1992 notice of claim was untimely because it was not served within 90 days after he learned that he had Lyme disease, which was in January 1990, when defendant made an actual diagnosis of Lyme disease and plaintiff began receiving treatment therefor, or within a reasonable period after such 90-day period. Plaintiff knew that he had been examined by defendants in August 1988, and, once having learned that he had Lyme disease, should have been more diligent in obtaining the medical report of that examination containing the differential diagnosis (cf., McKinney v Bellevue Hosp., 183 AD2d 563, 566). The action must be dismissed because the Statute of Limitations has run without leave to serve a late notice of claim ever having been granted. Concur— Lerner, P. J., Rubin, Williams, Mazzarelli and Andrias, JJ.