Scantlebury v. New York City Health

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: Read
• Citation: Scantlebury v. New York City Health, 830 N.E.2d 292, 4 N.Y.3d 606, 797 N.Y.S.2d 394 (N.Y. 2005)
• Decision Date: 05 May 2005
• Parties: Janet Olivia SCANTLEBURY, Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent.

830 N.E.2d 292

4 N.Y.3d 606

Janet Olivia SCANTLEBURY, Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent.

Court of Appeals of New York.

May 5, 2005.

Law Offices of Joseph M. Lichtenstein, P.C., Mineola (Joseph Lichtenstein and Elliot Lewis of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York City (Larry A. Sonnenshein and Leonard Koerner of counsel), for respondent.

OPINION OF THE COURT

READ, J.

The issue on this appeal is whether General Municipal Law § 50-e (3)(c) excuses plaintiff's failure to serve the New York City Health and Hospitals Corporation (HHC) with a timely notice of intention to commence an action, a statutory condition precedent to suit, because she served a timely notice on the Comptroller of the City of New York and he held a General Municipal Law § 50-h hearing to examine her claim. We hold that section 50-e (3)(c), which saves claims from dismissal on account of defects in the manner of service, does not excuse a plaintiff's failure to serve a timely notice of claim on the correct public entity, which is what happened here when plaintiff served her notice on the Comptroller rather than HHC.

I.

Plaintiff Janet Olivia Scantlebury was treated for an elbow injury at HHC's Kings County Hospital from July 31, 1999 until November 18, 1999. On November 3, 1999, the Comptroller received a notice of claim from plaintiff alleging medical malpractice against HHC. By letter dated November 23, 1999, the Comptroller served plaintiff with notice of a General Municipal Law § 50-h hearing, directing her to appear at the Office of the Corporation Counsel for this purpose. The section 50-h hearing took place on July 19, 2000.

On August 8, 2000, plaintiff filed a summons and complaint against HHC for medical malpractice and failure to obtain informed consent; on August 15, 2000, she served HHC with the complaint. Plaintiff alleged that a notice of claim had been served upon HHC within 90 days after her claim arose; that at least 30 days had elapsed since this service and that adjustment or payment had been neglected or refused; that she had complied with HHC's demand for a section 50-h hearing; and that she was commencing her action within one year and 90 days after the happening of the event upon which her claim was based. In its answer, dated September 5, 2000, HHC denied each of these specific allegations, "except admitt[ed] that on or about November 3, 1999 a purported notice of claim was presented to the Comptroller of the City of New York, and that more than thirty days [had] elapsed since such presentation and that no adjustment thereof [had] been made; and that a hearing was held on July 19, 2000 pursuant to § 50-h of the General Municipal Law."

Plaintiff filed a note of issue on February 7, 2003. On February 25, 2003, HHC moved for summary judgment to dismiss the complaint on the ground that plaintiff had failed to serve a timely notice of claim on HHC. HHC further noted that plaintiff's time to apply to Supreme Court for leave to serve a late notice of claim had expired on February 16, 2001, one year and 90 days after November 18, 1999, her last date of treatment. Supreme Court granted HHC's motion for summary judgment and dismissed the complaint. The Appellate Division affirmed, as do we.

II.

Three statutory provisions bear on the outcome of this appeal. They are section 7401(2) of McKinney's Unconsolidated Laws of New York (New York City Health and Hospitals Corporation Act [L 1969, ch 1016, § 1, as amended] § 20 [2]), which sets out notice of intention requirements and time limitations applicable to actions against HHC; section 50-e (3)(a) of the General Municipal Law, which specifies the manner of service requirements for a notice of claim; and section 50-e (3)(c), which excuses defects in a notice of claim's manner of service under specified circumstances.

Section 7401(2) provides that an action against HHC for personal injuries

"shall not be commenced more than one year and ninety days after the cause of action thereof shall have accrued, nor unless a notice of intention to commence such action and of the time when and the place where the tort occurred and the injuries or damage, were sustained, together with a verified statement showing in detail ... the personal injuries alleged to have been sustained and by whom, shall have been filed with a director or officer of [HHC] within ninety days after such cause of action shall have accrued "(emphasis added).

The parties do not dispute that the "notice of intention to commence [an] action" required by section 7401(2) is a condition precedent to a suit against HHC, the functional equivalent of a notice of claim (cf. Court of Claims Act § 10 [service on Attorney General of a "notice of intention to file a claim" extends claimant's time to file and serve a claim]). In fact, we have treated section 7401(2) as a notice of claim provision, and have used the terms "notice of intention" and "notice of claim" interchangeably when discussing section 7401(2) (see e.g. Viruet v. City of New York, 97 N.Y.2d 171, 738 N.Y.S.2d 2, 763 N.E.2d 1143 [2001]).

Section 7401(2) also states that "[a]ll the provisions of section fifty-e of the general municipal law shall apply to such notice [of intention]." Further, HHC "may require any claimant hereunder to be examined as provided in section fifty-h of the general municipal law, and all the provisions of such section shall apply to such examinations."

Under General Municipal Law § 50-e (3)(a), proper service of a notice of claim against a public corporation such as HHC requires delivery of

"a copy thereof personally, or by registered or certified mail, to the person designated by law as one to whom a summons in an action in the supreme court issued against such corporation may be delivered, or to an attorney regularly engaged in representing such public corporation."¹

General Municipal Law § 50-e (3)(c), a savings provision, specifies that if a notice of claim is timely served "but in a manner not in compliance with the provisions of this subdivision [3]" (emphasis added), service is nonetheless valid "if the public corporation against which the claim is made demands that the claimant or any other person interested in the claim be examined in regard to it" or, alternatively, "if the notice is actually received by a proper person within the time specified by this section [i.e., within 90 days after the claim arises], and the public corporation fail [sic] to return the notice, specifying the defect in the manner of service, within thirty days after the notice is received" (emphasis added).²

Plaintiff asks us to apply General Municipal Law § 50-e (3)(c), the savings provision, to excuse her mistaken service on the Comptroller. In particular, she urges us to salvage her complaint by adopting the reasoning of the First Department in Mercado v New York City Health & Hosps. Corp., 247 A.D.2d 55, 677 N.Y.S.2d 314 [1st Dept. 1998] [where timely notice of claim names only HHC and is served on Comptroller who demands section 50-h hearing, General Municipal Law § 50-e (3)(c) applies and service of notice is valid]. HHC advocates for the contrary view, which was espoused by the Second Department here by force of its decision in Stallworth v New York City Health & Hosps. Corp., 243 A.D.2d 704, 663 N.Y.S.2d 287 [2d Dept. 1997], lv. denied 91 N.Y.2d 807, 669 N.Y.S.2d 1, 691 N.E.2d 1027 [1998] [service on Comptroller is insufficient to constitute service on HHC, and lack of service on HHC is not excused by its participation in section 50-h hearing or by provisions of General Municipal Law § 50-e (3)(c)].

As an initial matter, we have long recognized that the City of New York and HHC are separate entities for purposes of a notice of claim (see Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d 662, 382 N.Y.S.2d 18, 345 N.E.2d 561 [1976]). Further, our decisions respecting the former version of the savings provision as well as the current version's legislative history demonstrate that section 50-e (3)(c) was intended to cure improper methods of service, such as service by ordinary mail, not service on the wrong public entity (Adkins v. City of New York, 43 N.Y.2d 346, 350-351, 401 N.Y.S.2d 469, 372 N.E.2d 311 [1977] [former savings provision "was designed to permit effective service within the statutory period by means other than (those articulated in the former statute)" (citing legislative history)]; Munroe v. Booth, 305 N.Y. 426, 113 N.E.2d 546 [1953] [former savings provision not applicable where notice of claim against board of education was served on school district business manager rather than member of board, trustee or clerk thereof, the only persons authorized by statute to receive service]).

The former savings clause was part of General Municipal Law § 50-e (3), which provided that the notice

"shall be served on the party against whom the claim is made by delivering a copy thereof, in duplicate, personally, or by registered mail, to the person, officer, agent, clerk or employee, designated by law as a person to whom a summons in an action in the supreme court issued against such party may be delivered; provided that if service of such notice be made within the period prescribed by this section, but in a manner not in compliance with the provisions of this subdivision, such service shall be deemed valid if such notice is actually received by such person, officer, agent, clerk or employee and such party against whom the claim is made shall cause the claimant or any other person interested in the claim to be examined in regard to such claim "([emphasis added]; Graziano, Recommendations Relating to Section 50-e of the General Municipal Law and Related Statutes, 21st Ann Report of N.Y. Jud Conf, at 368 [1976]).

In Adkins, we reviewed the legislative history of the former savings provision as well as the cases applying it. Noting the "harsh" results...