Attis v Kings County Hosp.

Supreme Court, Kings County

Decided on April 16, 2026

Index No. 570/2025

Consuelo Mallafre Melendez, J.

Recitation, as required by CPLR § 2219 (a), of the papers considered in the review:

Notice of Motion, Affirmation & Exhibits 1

Notice of Cross Motion, Affirmation & Exhibits 2

Defendants New York City Health and Hospitals Corporation ("NYCHHC"), also sued herein as Kings County Hospital, move for an Order pursuant to CPLR 3211 (a) (5) to dismiss [*2]this action as time-barred by the statute of limitations, and pursuant to CPLR 3211 (a) (7) to dismiss this action for failure to file a timely notice of claim (Seq. No. 4).

Plaintiff pro se opposes the motion and cross moves, in essence, to deny Defendant's motion and allow her to proceed with this action (Seq. No. 5).

Plaintiff commenced this action by filing a Summons with Notice on June 12, 2025, and a Verified Complaint on January 12, 2026. She asserts claims of medical malpractice for failure to timely diagnose and treat chronic kidney disease. In the Complaint, she alleges that she was a long-time patient of NYCHHC/Kings County Hospital, and she learned she had stage IV kidney disease on or about December 19, 2022.

Defendants acknowledge that Plaintiff served a notice of claim on August 16, 2024, with the assistance of counsel. Subsequently, according to Plaintiff's affidavit in opposition to this motion, she was unable to contact her former attorney and proceeded pro se in filing the Summons and Complaint.

The statute of limitations is a waivable defense pursuant to CPLR 3211 (e), not a jurisdictional defect, and must be asserted by the defendant (see HSBC Bank USA, N.A. v Schneps, 246 AD3d 1045, 1046 [2d Dept 2026]). It is the movant's initial burden to establish their entitlement to dismissal on those grounds through admissible evidence (see Wells Fargo Bank, N.A. v Lefkowitz, 171 AD3d 843, 844 [2d Dept 2019]). "On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired. If such prima facie showing is made, the burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable." (RTT Holdings, LLC v Nacht, 206 AD3d 834, 835 [2d Dept 2022] [internal citations omitted].) Where the defendant does not meet their burden, the Court "need not consider the sufficiency of the opposition papers" (Wesolowski v St. Francis Hosp., 175 AD3d 1461 [2d Dept 2019], quoting Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

Pursuant to Gen. Mun. Law 50-i (1) and Uncon. Law 7401 (2), any tort claims against NYCHHC, a municipal corporation, "shall not be commenced more than one year and ninety days after the cause of action thereof shall have accrued." For a medical malpractice claim, the one year and ninety days is measured from the date the claims arose, or from the last date of continuous treatment for the same illness, injury, or condition which gave rise to the act or omission (see CPLR 214-a).

In support of their pre-Answer motion, Defendants submit Plaintiff's Complaint, the notice of claim dated August 16, 2024, and the transcript of the 50-H hearing held on November 15, 2024. The movants argue that her last date of treatment was December 19, 2022, based on the statement in her Complaint that she learned about her kidney disease diagnosis on that date. However, the notice of claim alleges that she received a continuous course of treatment from NYCHHC "through on or about May 24, 2024." Absent from the movants' papers are any medical records or citations to evidence to establish Plaintiff's actual last date of treatment.

The Court finds Defendants' papers are insufficient to establish prima facie entitlement to dismissal based on the statute of limitations. They have not demonstrated Plaintiff's actual dates of treatment through their evidentiary submissions, and therefore the Court cannot find as a matter of law that her medical malpractice claims were time-barred on June 12, 2025 when the Summons with Notice was filed. Accordingly, this portion of the motion is denied regardless of the sufficiency of the opposition papers.

For the same reason, Defendants have not established in their moving papers that the notice of claim dated August 16, 2024 was untimely. Dismissal for failure to timely file a notice of claim also requires a prima facie showing that the 90-day period elapsed without service of the notice of claim. Defendants concede that they were served the notice of claim on or about August 16, 2024. The dates set forth in that notice of claim, alleging continuous treatment through May 24, 2024, render the notice of claim timely on its face. Defendants do not address that date in their papers and rely solely on a December 2022 date mentioned in the Complaint as Plaintiff's "very latest" date of treatment. As Defendants have submitted no evidence of Plaintiff's actual treatment dates to support their argument that the notice was untimely, the part of the motion seeking to dismiss the Complaint on that basis is denied.

Accordingly, Defendants' pre-Answer motion to dismiss Plaintiff's Complaint as time-barred by the statute of limitations and/or to dismiss the Complaint for failure to timely file a notice of claim is denied.

Plaintiff's Notice of Cross Motion and supporting papers do not include any discernable requests for relief, other than asking the Court to allow her to proceed and move forward with her case. To the extent this Court has denied Defendants' motion to dismiss, Plaintiff's cross motion is denied as moot, and any other requests for relief are denied.

It is hereby:

ORDERED that Defendants' motion (Seq. No. 4) to dismiss Plaintiff's Complaint pursuant to CPLR 3211 (a) (5) and CPLR 3211 (a) (7) is denied; and it is further

ORDERED that Defendants shall serve an Answer within 30 days of this Order; and it is further

ORDERED that Plaintiff's cross motion (Seq. No. 5) is denied.

This constitutes the decision and order of this Court.

ENTER.

Hon. Consuelo Mallafre Melendez

J.S.C.