Colocho v. Nassau University Medical Center

In a proceeding pursuant to General Municipal Law § 50-e for leave to serve a late notice of claim, Nassau University Medical Center appeals from an order of the Supreme Court, Nassau County (McCarty, J.), entered November 21, 2005, which denied its motion to vacate an ex parte order of the same court dated May 19, 2005, granting the petition or, in the alternative, in effect, for reargument of the petition. Ordered that the order entered November 21, 2005 is reversed, on the law, with costs, that branch of the motion which was to vacate the order dated May 19, 2005 is granted, that branch of the motion which was, in the alternative, in effect, for reargument of the petition is denied as academic, and the order dated May 19, 2005 is vacated. It is undisputed that the appellant was never served with the petition for leave to serve a late notice of claim, and became aware of its existence only after the Supreme Court had issued an ex parte order granting the petition. Under these circumstances, we agree with the appellant that the Supreme Court never properly obtained jurisdiction over it (cf. Matter of Callahan v City of New York, 75 NY2d 899 [1990]; Matter of Lewin v County of Suffolk, 239 AD2d 345, 346 [1997]; Matter of Eso v County of Westchester, 141 AD2d 542, 543 [1988]). The 1976 amendment to the General Municipal Law (see L 1976, ch 745, § 2) changed the manner of service but did not eliminate the requirement that the municipality be served. Accordingly, that 463 branch of the appellant’s motion which was to vacate the ex parte order dated May 19, 2005 should have been granted (see CPLR 5015 [a] [4]; Matter of Cartier v County of Nassau, 281 AD2d 477, 478 [2001]), and the alternative branch of the motion, which was for reargument, should have been denied as academic. In light of our determination, we do not reach the appellant’s remaining contentions. Mastro, J.E, Fisher, Angiolillo and McCarthy, JJ., concur.