The following papers numbered 1 to 5 read on this motion

Papers Numbered

Notice of Motion/Cross Motion-Order to Show Cause and

Affidavits (Affirmations) Annexed1, 2Answering Affidavit (Affirmation)3, 4Reply Affidavit (Affirmation)5Affidavit (Affirmation)

Pleadings-Exhibits

Stipulations-Minutes

Filed Papers

Defendant New York City Health and Hospitals Corporation moves pursuant to Unconsolidated Laws §7401 and General Municipal Law §§50-e, 50-i and 50-k for an Order dismissing claims against it occurring prior to September 14, 2002 for failure to comply with Notice of Claim requirements. Plaintiff cross moves for an Order granting leave to serve an Amended Notice of Claim, non pro tunc, and to amend all pleadings with regard to the dates of treatment. Claims against defendant Ofelia Bartolome Imperio, M.D. were previously dismissed.

This is an action sounding in medical malpractice, for lack of informed consent and for [*2]the wrongful death of Jocelyn B. Michel on September 26, 2002. Originally, claims were also made against Dr. Imperio for alleged malpractice for treatment rendered at the Bedford Chest Center, a facility operated by the City of New York.

A Notice of Claim, filed on December 13, 2002, states that "the claim arose on September 14, 2002 at Kings County Hospital. Decedent was admitted through the emergency room (ER) and released two (2) days later. Decedent was readmitted approximately September 23, 2002 to Kings County Hospital where she died on September 26, 2002..." An Amended Notice of Claim was served without leave of court on December 3, 2003 claiming that "(t)he claim arose on September 14, 2002 at Kings County Hospital and, approximately six (6) months prior thereto at Bedford Chest Center." The 2003 Amended Notice of Claim, having been filed without leave of court, is a nullity and will not be discussed herein. See, Pierre v. City of New York, 22 AD3d 733 (2d Dept 2005). Plaintiff now seeks to amend the Notice of Claim filed on December 13, 2002 to include additional treatment which took place at Kings County Hospital on September 6-7, 2002 and September 13, 2002.

The action was commenced with the filing of a Summons and Verified Complaint on or about December 10, 2003 and issue was joined on behalf of NYCHHC on February 27, 2004. A Bill of Particulars, served on NYCHHC on or about April 20, 2004, states "(t)he injuries necessitated hospitalization at Kings County Hospital... from September 14, 2002 until September 26, 2002. A Supplemental Bill of Particulars was served on or about November 3, 2008 claiming that the dates of negligence were September 6, 2002 through September 26, 2002. Plaintiff filed the Note of issue on October 5, 2009 and the case is now on the trial calendar.

By way of procedural history, it is conceded that the original Notice of Claim was not properly served on the City of New York in relation to the alleged malpractice of Dr. Imperio, an employee of the City of New York. In 2004, the City of New York moved to dismiss the claims against it based on the failure to serve the Notice of Claim upon it. Plaintiff opposed that motion and cross moved to amend his Notice of Claim and to compel production of medical records. While this court originally denied defendant's motion, no determination was made as to plaintiff's application. Thereafter, defendant moved to reargue its motion but plaintiff did not seek to reargue or renew his cross motion to amend the notice of claim. Upon reargument, the court granted defendant's motion to dismiss Dr. Imperio on notice of claim grounds.

In response to these events and in an attempt to explain why the cross motion to amend the Notice of Claim was not pursued at that time, plaintiff states that Mr. Michel's prior counsel's cross motion was merely in response to defendant's motion and consisted merely of a "generic cross- motion to amend the notice of claim... (t)here is no specificity with regard to what or in what manner the Notice of Claim was to be amended...he was merely reserving his right to amend the Notice of Claim once the full and complete copy of the medical records were provided by defendant NYCHHC." (Plaintiff's Reply pg. 2).

Almost 10 years after the alleged malpractice, plaintiff seeks to amend his Notice of Claim arguing that the amendment is necessary merely to correct a mistake or omission. Plaintiff argues that the correction is not of a substantive nature and can therefore be corrected pursuant to §50-e(6). He claims that NYCHHC has withheld production of the complete medical record of decedent, thereby causing his inability to give notice of the two (2) prior visits to Kings County Hospital: an admission on Sept 6, 2002 and an emergency room visit on September 13, 2002. [*3]Specifically, he states that it wasn't until approximately a year and a half after Ms. Michel died that most of the records were provided to his attorneys. The remaining records, namely the emergency room visit of September 13, 2002, were provided on January 30, 2009. Plaintiff claims that for this reason the Notice of Claim omits the dates of the prior treatment and that he has been severely prejudiced in this respect by defendants failure to supply the complete medical file.

General Municipal Law § 50—e(6) authorizes a court, in its discretion, to grant leave to serve an amended notice of claim where the error in the original notice of claim was made in good faith, and where the other party has not been prejudiced thereby. Sanchez v City of New York, 87 AD3d 576 (2d Dept. 2011); Gatewood v Poughkeepsie Hous. Auth., 28 AD3d 515, (2d Dept. 2006). However, General Municipal Law § 50—e(6) does not permit amendments to a notice of claim that are substantive in nature. Zwecker v. Clinch, 279 AD2d 572 (2nd Dept. 2001); Forsythe v Town of Tuxedo, 220 AD2d 640 (2d Dept. 1995); Demorcy v City of New York, 137 AD2d 650 (2d Dept. 1988). Amendments which are substantive in nature must be sought before the expiration of the statute of limitations. See, General Municipal Law § 50-e (5); §7401(2) of the Unconsolidated Laws; Pierson v City of New York, 56 NY2d 950 (1982); Matter of McCoy v City of New York, 10 AD3d 724 (2d Dept. 2004). This period cannot be extended by the court. Pierson v City of New York, supra at 955-956.

Plaintiff urges the court to find that the omission of the two subject visits to Kings County Hospital was merely a mistake and is not to be regarded as a substantive omission. The court, however, does not accept this characterization. The two prior visits to KCH involve treatment extraneous to that rendered on the claimed admission and include different hospital departments and medical personnel. Each of the visits to Kings County Hospital in September were discrete and required actual notice to the defendant. Amending the Notice of Claim to include these visits results in adding new theories of liability to this case. The proposed amendment therefore is of a substantive nature and is not permitted at this juncture.

Even assuming that the omission of the dates of treatment at Kings County Hospital prior to September 14, 2002 was an error not substantive in nature, plaintiff's continued failure to remedy the omission inured to prejudice the defendant. Such acquiescence cannot be looked upon to have been in good faith particularly in light of notations in decedent's medical records which put plaintiff on notice of the visits at issue. These records were in plaintiff's possession well within the year and ninety days of the occurrence, when the court had discretion to grant the amendment sought herein. The Kings County record for the September 14, 2002 admission contains a note labeled "Physician Admitting Database" dated September 15, 2002 stating that the patient was "previously admitted last 9/6/2002." (Emphasis added). The Ambulance Call Report contained with the September 14th admission notes that patient states "she was in hospital for same thing two days ago." The court notes that this would refer to the emergency room visit of September 13, 2002. Furthermore, in a letter addressed to Kings County Hospital, dated December 3, 2003, plaintiff's prior attorney states "(o)ur records indicates that our client...was seen at Kings County Hospital on two occasions prior to her admission on September 14, 2002." The date of this correspondence was still within the discretionary period within which the court may grant an amendment to a notice of claim. Additionally, the records from the Bedford Chest Center dated September 11, 2002 notes that the patient was "admitted last week KCH and was [*4]discharged 9-7-02." Plaintiff does not deny possession of the Bedford Chest Center records on or about the time the original Notice of Claim was filed.

The first time defendants received notice in writing that the claims against it also involves treatment rendered on September 6, 2002 and Septmeber 13, 2002 was on or about October 31, 2008. The requirement that a notice of claim be served within 90 days after a tort claim arises is intended to protect public corporations against stale claims and to give them an opportunity to timely and efficiently investigate tort claims. Matter of Narcisse v. Incorporated Vil. of Cent. Islip, 36 AD3d 920 (2d Dept. 2007); Matter of Tumm v. Town of Eastchester, 8 AD3d 581, 582, (2d Dept. 2004). In this case, the claim arose in 2002, discovery was completed and the Note of Issue was filed over two years ago. Clearly the "correction" which plaintiff seeks prejudices the defendant and cannot be said to have been a mistake in good faith.

Lastly, Plaintiff argues that portions of the Notice of Claim served on December 13, 2002 adequately apprise the defendant of the substance of the claim. However, this argument fails since only the admission of September 14, 2002 is referenced in the notice and it cannot reasonably be inferred from it that a prior treatment is also the subject of the claim against Kings County Hospital. "What satisfies the statute is not knowledge of the wrong, but notice of the claim. The municipality must have notice or knowledge of the specific claim and not general knowledge that a wrong has been committed." Matter of Peterson v New York City Dept. of Envtl. Protection, 66 AD3d 1027, 1030 (2d Dept. 2009) citing, Matter of Sica v. Board of Educ. of City of NY, 226 AD2d 542 (2d Dept. 1996); see Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d 138, 148 (2d Dept. 2008); Matter of Shapiro v. County of Nassau, 208 AD2d 545 (2d Dept.1994).

Accordingly, all claims in plaintiff's complaint made against New York City Health and Hospitals Corporation for treatment rendered prior to September 14, 2002 are hereby dismissed and plaintiff's cross motion is denied.

This constitutes the decision, opinion and order of this court.

Enter,



J. S. C.