| Matter of Shannon v Westchester County Health Care Corp. |
| 2010 NY Slip Op 06489 [76 AD3d 680] |
| August 24, 2010 |
| Appellate Division, Second Department |
| In the Matter of Wanda Shannon,Appellant, v Westchester County Health Care Corporation et al.,Respondents. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, N.Y. (Faisal A. Khan ofcounsel), for respondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a lateof notice of claim and for leave to file a proposed summons and complaint, nunc pro tunc, thepetitioner appeals from an order of the Supreme Court, Westchester County (Colabella, J.),entered June 19, 2009, which denied the petition.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the petition which was for leave to serve a late notice of claim; as so modified, theorder is affirmed, with costs to the petitioner, and the matter is remitted to the Supreme Court,Westchester County, for a new determination on that branch of the petition.
In December 2007, while the petitioner was a patient at the respondent Westchester CountyMedical Center (hereinafter the Hospital), her fetus was stillborn. By verified petition datedMarch 2, 2009, the petitioner commenced this proceeding pursuant to General Municipal Law§ 50-e (5) against, among others, the Hospital and Westchester County Health CareCorporation for leave to serve a late of notice of claim and for leave to file a proposed summonsand complaint, nunc pro tunc. In her verified petition, the petitioner asserted that she had areasonable excuse for failing to timely serve the notice of claim against the respondents. Sheargued that she mistakenly served a notice of claim upon Westchester County rather than on theHospital because she believed that the County was responsible for the Hospital. In addition, thepetitioner argued that there was no prejudice to the respondents, as they possessed the medicalrecords which provided actual notice of the underlying incident. By order entered June 19, 2009,the Supreme Court denied that branch of the petition which was for leave to serve a late of noticeof claim on the ground that it was "moot" because the petitioner could not commence the actionwhile also giving the respondents the required 30-day period to respond to the notice of claim.Thus, the Supreme Court dismissed the entire petition. We modify.
At the outset, it should be noted that the respondents raised no contention before theSupreme Court, or on appeal, that the one year and 90-day statute of limitations period (seeGeneral [*2]Municipal Law § 50-i [1] [c]; Klein vCity of Yonkers, 53 NY2d 1011, 1012 [1981]) had expired with respect to the causes ofaction contained in the proposed complaint. It should also be noted that, during the pendency ofthe petitioner's proceeding for leave to serve a late notice of claim, CPLR 204 (a) serves to tollthe running of the statute of limitations in the underlying action (see Giblin v Nassau CountyMed. Ctr., 61 NY2d 67, 74 [1984]; Cinqumani v County of Nassau, 28 AD3d 699, 701 [2006];Matter of Blair v County of Ontario, 295 AD2d 933, 933 [2002]).
In the order appealed from, the Supreme Court properly denied that branch of the petitionwhich was for leave to file the proposed summons and complaint, nunc pro tunc, because theproposed complaint could not accurately allege that the notice of claim was served at least 30days prior to the commencement of the action, as required by General Municipal Law §50-i (1). However, the Supreme Court improperly failed to determine, on the merits, that branchof the petition which was for leave to serve a late notice of claim. That branch of the petitionwhich was for leave to serve a late notice of claim was not rendered academic because, withoutleave of the court, the petitioner may still timely commence the action within the one year and90-day limitations period. While the commencement of the action in this manner would run afoulof General Municipal Law § 50-i (1)'s requirement that the complaint accurately allegethat the notice of claim was served at least 30-days prior to the commencement of the action,such failure to comply with the notice of claim pleading requirement is a procedural rather thanjurisdictional defect (see Giblin v Nassau County Med. Ctr., 61 NY2d at 67;Commissioners of State Ins. Fund v Board of Educ., Arlington Cent. School Dist. No. 1,301 AD2d 555, 555-556 [2003]; cf. Finnerty v New York State Thruway Auth., 75NY2d 721, 722-723 [1989]; Williams vState of New York, 38 AD3d 646, 646-647 [2007]). Thus, although the failure tocomply with the pleading requirement would render the complaint subject to dismissal (see Inzerillo v Town of Huntington, 67AD3d 736 [2009] [since the plaintiff commenced the action less than 30 days after serviceof his notice of claim, Town's motion to dismiss complaint was properly granted, but thecomplaint should have been dismissed without prejudice]; McKune v City of New York, 19 AD3d 308 [2005] [since theplaintiff failed to provide City with the requisite 30-day window between service of notice ofclaim and commencement of the action, the complaint was properly dismissed, albeit withoutprejudice]), any such dismissal would be without prejudice to the petitioner's commencement ofa new action against the respondents within the time limit set forth in CPLR 205 (a) (seeInzerillo v Town of Huntington, 67 AD3d at 738; McKune v City of New York, 19AD3d at 310; cf. Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]).
Accordingly, we remit the matter to the Supreme Court, Westchester County, for a newdetermination on that branch of the petition which was for leave to serve a late notice of claim.Skelos, J.P., Angiolillo, Dickerson and Leventhal, JJ., concur.