Scantlebury v. New York City Health & Hospitals Corp.

7 A.D.3d 776, 776 N.Y.S.2d 869

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 24, 2004
• Status: Published

Opinion

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Spodek, J), dated May 22, 2003, which granted the defendant’s motion for summary judgment dismissing the complaint for failure to serve a timely notice of claim.

Ordered that the order is affirmed, with costs.

Service of a notice of claim upon the defendant New York City Health and Hospitals Corporation (hereinafter the NYCHHC) is a condition precedent to the commencement of a tort action against it pursuant to General Municipal Law § 50-e. Contrary to the plaintiff’s 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 NYCHHC (see Hazell v New York City Health & Hosps. Corp., 290 AD2d 533 [2002]; Stallworth v New York City Health & Hosps. Corp., 243 AD2d 704 [1997]; cf. Mercado v New York City Health & Hosps. Corp., 247 AD2d 55 [1998]).

Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint for failure to serve a timely notice of claim. Florio, J.P., Krausman, Cozier and Rivera, JJ., concur.