June 26, 2013
Mia PLAZA, an Infant by Her Mother and Natural Guardian, Claribel Rodriguez, Appellant,
NEW YORK HEALTH AND HOSPITALS CORPORATION (Jacobi Medical Center), Respondent.
Law Offices of Fitzgerald & Fitzgerald, P.C., Yonkers (John M. Daly of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York City (Janet L. Zaleon of counsel), for respondent.
The order of the Appellate Division should be affirmed, with costs. The certified question should not be answered on the ground that it is unnecessary.
Plaintiff admittedly served a late notice of claim against defendant without seeking leave of court.
General Municipal Law § 50-e (1) requires that a claimant serve a notice of claim against a public corporation within 90 days after a tort claim arises. However, section 50-e (5) provides that a court, " in its discretion," may grant an application extending the time to serve a notice of claim as long as the application is made within the limitations period for commencing the action, including any tolls or extensions. CPLR 208 provides that " [i]f a person entitled to commence an action is under a disability because of infancy ... at the time the cause of action accrues, and ... the time otherwise limited [for commencing the action] is less than three years, the time shall be extended by the period of disability." Where a medical malpractice action accrues during infancy, the extension is limited to 10 years from the time of accrual ( see CPLR 208).
Chief Judge LIPPMAN and Judges GRAFFEO, READ, SMITH, PIGOTT, RIVERA and ABDUS-SALAAM concur.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question not answered on the ground that it is unnecessary, in a memorandum.