Mullins v. East Haven Nursing & Rehabilitation Center, LLC , 886 N.Y.S.2d 602 ( 2009 )

Order, Supreme Court, New York County (Stanley L. Sklar, J.), entered May 28, 2008, which granted the motion of defendant New York City Health and Hospitals Corporation to dismiss plaintiff’s complaint, on the grounds that plaintiff failed to timely file a notice of claim, unanimously affirmed, without costs.

While plaintiffs decedent was still living, a notice of claim and an amended notice of claim, alleging medical malpractice, were filed more than 90 days after his last scheduled medical appointment. Thereafter, an action alleging conscious pain and suffering was brought on his behalf in the name of a guardian.

The 73-year-old decedent died on May 23, 2005. However, plaintiff had not only failed to timely file a notice of claim, but never made an application for leave to file a late notice of claim.

That plaintiffs decedent may have been under a disability (insanity) did not toll the necessity of filing a timely notice of claim; it tolled only the time in which to apply for leave to serve a late notice of claim (see Noel v Shahbaz, 274 AD2d 381, 382 [2000]). Even with the toll, plaintiffs time to seek leave to serve a late notice expired, at the latest, one year and 90 days after decedent’s death, or August 21, 2006. Having failed to move within that time, the IAS court was without discretion to excuse the failure to file a notice of claim within 90 days of the alleged malpractice, and the complaint alleging conscious pain and suffering was properly dismissed (see Pierson v City of New York, 56 NY2d 950 [1982]; McGarty v City of New York, 44 AD3d 447 [2007]). Concur—Mazzarelli, J.P., Andrias, Moskowitz, Renwick and Richter, JJ.