| Singh v New York City Health & Hosps. Corp. (Bellevue Hosp.Ctr. & Queens Hosp. Ctr.) |
| 2013 NY Slip Op 04324 [107 AD3d 780] |
| June 12, 2013 |
| Appellate Division, Second Department |
| Sukhwinderjit Singh, Appellant, v New York CityHealth and Hospitals Corporation (Bellevue Hospital Center and Queens HospitalCenter) et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner andEdward F.X. Hart of counsel), for respondents.
In an action to recover damages for medical malpractice and wrongful death, theplaintiff appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.),dated December 15, 2011, which denied his motion pursuant to CPLR 306-b to extendthe time to serve the summons and complaint upon the defendants and granted the crossmotion of the defendants New York City Health and Hospitals Corporation (BellevueHospital Center and Queens Hospital Center), Ellie Grossman, and Danielle Williams,inter alia, pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as assertedagainst them as time-barred.
Ordered that the order is affirmed, with costs.
The plaintiff's decedent, Simrandeep Kaur (hereinafter the decedent), died onNovember 27, 2008, while she was a patient at a hospital operated by the defendant NewYork City Health and Hospitals Corporation (Bellevue Hospital Center and QueensHospital Center) (hereinafter the HHC). On December 13, 2010, the plaintiff commencedthis action to recover damages for medical malpractice and wrongful death against,among others, the HHC. Thereafter, by notice of motion dated May 9, 2011, the plaintiffmoved pursuant to CPLR 306-b to extend the time to serve the summons and complaintupon the defendants. The HHC and the defendants Ellie Grossman and DanielleWilliams (hereinafter collectively the Hospital defendants) cross-moved, inter alia,pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against themas time-barred. In the order appealed from, the Supreme Court denied the plaintiff'smotion and granted the Hospital defendants' cross motion.
A defendant who seeks dismissal of a complaint pursuant to CPLR 3211 (a) (5) onthe ground that it is barred by the statute of limitations bears the initial burden ofproving, prima facie, that the time in which to sue has expired (see Benjamin v KeyspanCorp., 104 AD3d 891 [2013]). The burden then shifts to the nonmoving party toraise a question of fact as to the applicability of an exception to the statute of limitations,as to whether the statute of limitations was tolled (see Shalik v Hewlett Assoc., L.P., 93 AD3d 777, 778[2012]), or as to whether the action was actually commenced [*2]within the applicable limitations period (see Williams v New York CityHealth & Hosps. Corp., 84 AD3d 1358 [2011]).
In support of their cross motion to dismiss the complaint insofar as asserted againstthem, the Hospital defendants met their initial burden of establishing, prima facie, thatthe complaint was time-barred, in that the medical malpractice cause of action wasinterposed more than one year and 90 days after the decedent's death (seeMcKinney's Uncons Laws of NY § 7401 [2] [New York City Health and HospitalsCorporation Act § 20, as added by L 1969, ch 1016, § 1, as amended]), andthe wrongful death cause of action was interposed more than two years after decedent'sdeath (see Public Authorities Law § 2981).
In opposition, the plaintiff failed to raise a question of fact as to whether the statuteof limitations was tolled. The plaintiff's contention that the waiting period pursuant toGeneral Municipal Law § 50-h for him to comply with the HHC's examinationrequest before commencing this action tolled the statute of limitations pursuant to CPLR204 (a) is without merit, as the Legislature did not intend to extend the limitations periodby the inclusion of that statutory waiting period (see Baez v New York City Health &Hosps. Corp., 80 NY2d 571, 577 [1992]; Cinqumani v County of Nassau, 28 AD3d 699, 701 [2006];Mignott v New York City Health & Hosps. Corp., 250 AD2d 165, 171 [1998]).Likewise without merit is the plaintiff's contention that the period between December 30,2008, when he filed a petition to obtain limited letters of administration for thedecedent's estate, and January 27, 2009, when the Surrogate's Court granted that petition,tolled the limitations period (seeCancel v Posner, 82 AD3d 575 [2011]; Wilson v New York City Health & Hosps. Corp., 36 AD3d902, 903 [2007]; PublicAdm'r of Kings County v Canada Dry Bottling Co. of N.Y., 16 AD3d 397,397-398 [2005]; Hammie v City of New York, 143 AD2d 805, 806 [1988];cf. Hernandez v New York City Health & Hosps. Corp., 78 NY2d 687 [1991]).Therefore, the Supreme Court properly granted the Hospital defendants' cross motion,inter alia, pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as assertedagainst them as time-barred.
Further, the Supreme Court properly denied the plaintiff's motion pursuant to CPLR306-b to extend the time to serve the summons and complaint upon the defendantsinasmuch as the plaintiff commenced this action after the expiration of the statute oflimitations period and, as a result, the filing of the complaint was a nullity (see Gonzalez v New York CityHealth & Hosps. Corp., 29 AD3d 369, 370 [2006]; see also Baptiste v "JohnDoe", 89 AD3d 436 [2011]; see generally Slate v Schiavone Constr. Co., 4 NY3d 816,817 [2005]).
The plaintiff's remaining contentions are without merit. Balkin, J.P., Leventhal, Sgroiand Miller, JJ., concur.