De La Cruz v. City of New York

• Decision Date: 02 November 1995
• Citation: 633 N.Y.S.2d 145,221 A.D.2d 168
• Parties: Demasco DE LA CRUZ, et al., Plaintiffs-Appellants, v. The CITY OF NEW YORK, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 145

633 N.Y.S.2d 145

221 A.D.2d 168

Demasco DE LA CRUZ, et al., Plaintiffs-Appellants, v. The CITY OF NEW YORK, et al., Defendants-Respondents.

Supreme Court, Appellate Division,

First Department.

Nov. 2, 1995.

N. Urdang, for plaintiffs-appellants.

J.I. Kalkstein, for defendants-respondents.

Before SULLIVAN, J.P., and ELLERIN, ROSS, TOM and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Resettled order, Supreme Court, Bronx County (Douglas McKeon, J.), entered September 26, 1994, which, inter alia, granted the motion of defendants City of New York and New York City Health and Hospitals Corp. to dismiss the complaint, unanimously affirmed, without costs.

As plaintiffs did not seek to amend the notice of claim within the one-year-and-90-day period of limitations, the complaint was properly dismissed (Pierson v. City of New York, 56 N.Y.2d 950, 453 N.Y.S.2d 615, 439 N.E.2d 331). Plaintiffs' effort to change the name of the allegedly negligent hospital from that designated in the original notice of claim, more than 90 days after the cause of action had accrued (but before the one-year-and-90-day period of limitations had expired), constitutes an attempt to add a new claim and thus, permission to file a late notice of claim was necessary (see, Capalbo v. New York City Health & Hosps. Corp., 147 A.D.2d 362, 537 N.Y.S.2d 526; see also, Bourguignon v. City of New York, 157 A.D.2d 644, 549 N.Y.S.2d 743). Hence, even if the May 9, 1983 "notice" were intended to be an amended notice of claim, it is a nullity as it was served upon defendants without leave of court (Chikara v. City of New York, 10 A.D.2d 862, 199 N.Y.S.2d 829, lv. denied 11 A.D.2d 688, 205 N.Y.S.2d 850, appeal dismissed, 8 N.Y.2d 1014, 206 N.Y.S.2d 780, 170 N.E.2d 204).