Opinion
June 18, 1984
In a medical malpractice action, plaintiff appeals from an order of the Supreme Court, Queens County (Buschmann, J.), dated May 16, 1983, which, inter alia, denied her motion for leave to serve a late notice of claim and granted a cross motion of defendants City of New York and New York City Health and Hospitals Corporation for summary judgment dismissing the action as to them. ¶ Order affirmed, with costs. ¶ Plaintiff commenced this action contending that, as a result of surgery performed in January, 1980, she lost vision in her left eye. In November, 1980, plaintiff, stating that the last date of treatment was April 18, 1980, sought permission to serve a late notice of claim. The motion was denied "with leave to renew upon proper papers (i.e. affidavits as to treatment being competent producing cause of condition and claimant's capacity)". The action was thereafter commenced by service of a summons and complaint on June 1, 1981. Following the receipt of an answer setting forth the affirmative defense of a failure to serve a timely notice of claim and a motion for discovery and inspection of hospital records, plaintiff, by notice of motion dated December 10, 1982, finally renewed her application to serve a late notice of claim. At that time she alleged that the date of last treatment was June 24, 1980 so that her "notice of claim was, at most, two or three days late". ¶ Special Term denied her motion and granted the cross motion of the respondents to dismiss. We affirm. ¶ An application for leave to serve a late notice of claim must be made, with exceptions not applicable here, within one year and 90 days after the date of the occurrence, in this case the date of last treatment ( Silbernagel v. City of New York, 57 N.Y.2d 691; Pierson v. City of New York, 56 N.Y.2d 950; Saler v. City of New York, 96 A.D.2d 583; Matter of Gelpi v. New York City Health Hosps. Corp., 90 A.D.2d 503; cf. Cotto v. City of New York, 99 A.D.2d 748). The motion brought in December, 1982 was thus too late and did not relate back to the prior motion (CPLR 2211; Wheeler v. Brady, 2 Hun 347, 348; 2 Carmody-Wait 2d, N Y Prac, § 8:79, pp 98-99; cf. Matter of Stoute v. City of New York, 91 A.D.2d 1043, mot for lv to app dsmd 59 N.Y.2d 762; but see Blackstone Inst. v Agnelli, 153 Misc. 760 ). Nor do we perceive any actions of the respondents which would warrant application of an estoppel ( Graber v. City of New York, 89 A.D.2d 598; cf. Matter of Daleview Nursing Home v. Axelrod, 62 N.Y.2d 30; Bender v. New York City Health Hosps. Corp., 38 N.Y.2d 662, 668; Cassidy v. County of Nassau, 84 A.D.2d 742). ¶ In any event, the City of New York is not a proper defendant ( Brennan v. City of New York, 88 A.D.2d 871, affd 59 N.Y.2d 791) and, on this record, even if the application had been timely, denial would have been an appropriate exercise of discretion (see Fox v. City of New York, 91 A.D.2d 624; Matter of Morris v. County of Suffolk, 88 A.D.2d 956, affd 58 N.Y.2d 767). Mollen, P.J., Titone, Lazer and Thompson, JJ., concur.