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NY Appellate Court Contends Notice of Claim Filed Too Late, Judgement for the Defendant

This is a case for appeal being heard in the Second Department of the Supreme Court Appellate Division. The appellant for the case is Carman Grellet. The respondents for the case are the City of New York et al. The appellant is represented by Ellen M. Saunders. The respondents are represented by June A. Witterschein and Marvin Kwartler. The case is being heard before Lazer J.P., Bracken, Kooper JJ., and Niehoff.


This is a medical malpracticeaction and the issue at hand before this court is whether or not the service of notice for the claim of the alleged malpractice suit was timely. The service of notice occurred ten years after the alleged malpractice took place.

Case Background

The infant whose injuries are in question was born at Elmhurst General Hospital on the third of July in 1970. The hospital was owned by the City of New York at the time and operated by the New York City Health and Hospitals Corporation.

The plaintiff states that the neurological injuries suffered by the infant were a result of negligent care and treatment on the day of delivery. However, the plaintiff did not deliver a notice of claim until the 8th of February, 1980, ten years after the child was delivered. The service of the summons and the complaint was not delivered until the sixth of August in 1982.

A New York Injury Lawyer said the defendants provided an answer to the notice of claim stating that the claim had not been commenced in a timely fashion and was therefore barred by the statute of limitations. The defendants move for dismissal of the case based on the fact that the plaintiff failed to file notice of claim within a reasonable amount of time. The plaintiff opposed the motion for dismissal.

In a memorandum, the Special Term held that the notice of claim made by the plaintiff was not applied in a timely manner and therefore ruled in favor of the defendants for the case to be dismissed.

Case Discussion

There is no argument to the fact that the allegations made by the plaintiff refer to the time the infant was born in 1970. The provisions provided under the General Municipal Law section 50 states that the plaintiff is required to serve notice of claim to the defendant within 90 days of this date. It is clear that the notice of complaint made by the plaintiff almost ten years after the fact is untimely. A Queens Personal Injury Lawyer said the action must be dismissed for this reason unless the plaintiff establishes that the time for serving the notice was tolled either by virtue of continuous treatment or reason of infancy.

We have determined that the plaintiff’s time to serve the notice of claim was not tolled by infancy in this particular case. The other option is that the untimely fashion in which the claim was made was because of the continuous medical treatment in regard to the same original complaint or condition.

Court Decision

After reviewing the facts of the case, the court affirms the original order from the Supreme Court. It is found that the notice of claim that was made by the plaintiff was clearly untimely as it occurred nearly a decade after the fact. A Staten Island Personal Injury Lawyer said there is no evidence to support the continuous medical treatment clause of the statute or the infant clause.

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