Abad v. New York City Health & Hospitals Corp.

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered January 6, 1994, which in an action for wrongful death and conscious pain and suffering, granted defendants’ motion to dismiss the cause of action for conscious pain and suffering for failure to file a timely notice of claim, and denied plaintiff’s cross-motion for an order granting leave to serve a late notice of claim as to that cause of action or, in the alternative, deeming the notice of claim previously served as timely, unanimously affirmed, without costs.

Since plaintiffs application for leave to file a late notice of claim for his decedent’s conscious pain and suffering was not made until more than one year and 90 days after the alleged malpractice, 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 cause of action for conscious pain and suffering was properly dismissed (Pierson v City of New York, 56 NY2d 950; Gibbons v City of Troy, 91 AD2d 707). Concur—Sullivan, J. P., Wallach, Nardelli, Williams and Mazzarelli, JJ.