Bankson v. Westchester Medical Center

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Donovan, J.), entered April 22, 2003, which denied her motion, inter alia, to deem proper her prior service of a notice of claim, or for leave to renew her cross motion for leave to serve a late notice of claim, and granted the defendant’s cross motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff contends that her service of process upon the wrong governmental entity should have been excused. Such an error can be excused provided that a prompt application for relief is made after discovery of the error. In this case, however, even upon her motion for leave to renew, the plaintiff produced no proof that she served a notice of claim upon the proper party, the Westchester County Health Care Corporation, nor did she seek permission to do so (cf. Matter of Flynn v Town of Oyster Bay, 256 AD2d 341 [1998]). In addition, the plaintiff failed to demonstrate that no prejudice would result from her delay in serving a notice of claim upon the proper party (see Matter of Lorseille v New York City Hous. Auth., 295 AD2d 612 [2002]). Under these circumstances, the Supreme Court providently exercised its discretion in denying the plaintiff’s motion and granting the defendant’s cross motion. Prudenti, P.J., Florio, H. Miller, Schmidt and Cozier, JJ., concur.