Waiters v. New York City Health & Hospitals Corp.

83 A.D.2d 612, 441 N.Y.S.2d 294, 1981 N.Y. App. Div. LEXIS 14900

Opinion

In a wrongful death action predicated upon medical malpractice, defendant appeals from an order of the Supreme Court, Kings County (Brownstein, J.), dated September 11,1979, which (1) denied its motion to dismiss the complaint insofar as it sought to recover damages for conscious pain and suffering and for loss of services, and (2) granted plaintiff’s cross motion for leave to serve and file a late notice of claim. The appeal brings up for review so much of a further order of the same court, dated April 28, 1980, as, upon reargument, adhered to the original determination. By order dated March 23,1981 this court (1) dismissed the appeal from the order dated September 11, 1979 as academic since said order was superseded by the order of April 28,1980, (2) remitted the matter to Special Term, and (3) directed that the appeal from the order dated April 28,1980 be held in abeyance (Waiters v New York City Health & Hosps. Corp., 83 AD2d 612). Special Term has held a hearing and filed its findings. Order dated April 28, 1980 affirmed insofar as reviewed, without costs or disbursements. Special Term found that the delay in filing the notice of claim was occasioned by (1) the death of the claimant and (2) the fact that the City of New York, after having received a summons and complaint, which was served either on the day or the day after the city held a hearing in this matter, explored every possible claim that could be instituted against the city. Under such circumstances, Special Term rightly concluded that the city was not prejudiced (see General Municipal Law, § 50-e, subd 5; see, also, Matter of Snyder v City of Utica, 69 AD2d 991; Matter of Wemett v County of Onondaga, 64 AD2d 1025; Van Horn v Village of New Paltz, 57 AD2d 642; Rippe v City of Rochester, 57 AD2d 723). Mollen, P. J., Lazer, Gibbons and O’Connor, JJ., concur.