Gregoria Perez as Administrator of the Estate of Daniel Perez, Deceased, Plaintiff,
The City of New York, The New York City Health and Hospitals Corporation, and Bellevue Hospital Center, Defendants.
This case is not published in a printed volume and its disposition appears in a table in the reporter.
Eileen Bransten, J.
Pursuant to CPLR 3211, defendant New York City Health and Hospitals Corporation ("HHC") moves to dismiss the complaint of plaintiff Gregoria Perez ("Ms. Perez") as Administrator of the Estate of Daniel Perez ("Mr. Perez") for failure to comply with section 50-h of the General Municipal Law. Affirmation in Support ("Supp."), at 2. Co-defendant City of New York (the "City") cross-moves for the same relief and additionally seeks dismissal on the ground that it is an improper party.
Ms. Perez concedes that dismissal is warranted as against the City but opposes HHC's motion. See, Affirmation in Opposition ("Opp."), at 2.
On March 13, 2003, Ms. Perez served a notice of claim on HHC, setting forth that "medical malpractice [was committed] by Bellevue Hospital * * * and its doctors, employees and representatives" in connection with care and treatment rendered to Mr. Perez while hospitalized between January 18 and January 31, 2003. Supp., Ex. A. 
Pursuant to General Municipal Law 50-h, which authorizes an examination of the claimant "relative to the occurrence and extent of the injuries or damages for which claim is made," the Office of the Comptroller ("Comptroller") scheduled a hearing for May 12, 2003. Supp., at 6. The hearing notice stated that an adjournment could be sought by phone, writing or fax and that "any additional adjournment must be requested, in writing or by facsimile, to the Comptroller's Office [and] that it [would] be granted for good cause only and only if the hearing can be held prior to claimant's commencement of an action." Supp., Ex. C (emphasis added).
At Ms. Perez's attorney's request, which was made to the Comptroller by fax, the hearing was adjourned to August 4, 2003. The Comptroller sent counsel a letter confirming:
"that the hearing * * * has been adjourned, at your request, and has been rescheduled * * *."
Supp., at 6 and Ex. C.
On August 1, 2003, due to Ms. Perez's attorney's actual engagement in New York County Criminal Court, a second adjournment was requested from the Comptroller. Ms. Perez's counsel asked for a new hearing date on or after September 15, 2003. Supp., Ex. C. The matter was put over to October 14, 2003 and a letter reflecting the adjournment was mailed to plaintiff's counsel. Id .
Four days before the repeatedly-adjourned hearing date, Ms. Perez's counsel requested yet another postponement, this time apparently directing his inquiry to Schiavetti, Corgan, Soscia, DiEdwards and Nicholson, LLP ("Schiavetti, Corgan"), the law firm where the 50-h hearing was to be conducted. ...