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Lovett v. City of New York1/28/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Plaintiff Cleveland Lovett, an incarcerated person, has moved in this medical malpractice action for leave to serve a late Notice of Claim, pursuant to General Municipal Law §50-e, subd. 5. Defendants City of New York and The New York City Health and Hospitals Corporation (collectively referred to as NYCHHC) have opposed the motion, contending that it is untimely and even if it is not, it would be an abuse of discretion to grant the motion. For the reasons set forth herein, plaintiff's motion is granted.
Background
The underlying facts are as follows. Plaintiff was badly injured on September 20, 2002 during a police pursuit when he jumped, fell or was pushed 60-80 feet off the Henry Hudson Parkway at 72nd Street in Manhattan. Following his arrest, plaintiff was taken by ambulance to St. Luke's Hospital where he was immediately admitted. Doctors performed emergency surgery on that day and also on October 2 and 9, 2002. Following the surgeries, on October 21, 2002, plaintiff was transferred to Bellevue Hospital where he remained until January 15, 2003. He was then sent to the Riker's Island Infirmary. On February 25, 2003 plaintiff was returned to Bellevue Hospital for additional treatment due to decreased range of motion allegedly related to the injury. In May 2004 plaintiff filed a summons and complaint and a poor person's application to commence this action at a reduced fee. Plaintiff claims in this action that the doctors at Bellevue Hospital departed from accepted standards of medical care in that they prematurely discontinued antibiotics and failed to properly examine plaintiff and treat his severe infections. Plaintiff further alleges that, following his discharge to the Riker's Island Infirmary, the doctors neglected to send plaintiff for proper therapy and full rehabilitation services, all of which caused plaintiff to sustain permanent injuries.
Plaintiff did not file a Notice of Claim within ninety days of the alleged malpractice as required by General Municipal Law §50-e. Therefore, when he filed the papers to commence this action, he also submitted an order to show cause for leave to file a late Notice of Claim. It is that motion which is now before the Court for decision.
Rules Governing a Notice of Claim
Pursuant to General Municipal Law §50 e, subd. 1(a), a claimant commencing a tort action against a public corporation must serve and file a proper Notice of Claim within ninety days after the claim arises. The related action or proceeding must be commenced within one year and ninety days of the event. General Municipal Law §50 I. An application for an extension of time to serve a Notice of Claim may be made before or after the action has been commenced, but not after the one-year and ninety-day statute of limitations has run, unless the statute has been tolled. General Municipal Law §50-e, subd. 5.; see also, Hall v. City of New York, 1 AD3d 254 (2003); Pierson v. City of New York, 56 NY2d 950, 954 (1982); Nunez v. The City of New York, 307 AD2d 218, 219 (1st Dep't 2003).
In the case at bar, NYCHHC claims that plaintiff's motion must be denied because it was made after the statute of limitations for commencement of the action expired. The Court begins by examining this threshold issue, which is novel due to the unique facts of this case.
The Motion Papers were Timely Filed under the Inmate Rule
The parties agree that plaintiff was discharged from Bellevue Hospital on January 15, 2003 and received subse
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