Perez v. New York City Health

In a proceeding for leave (1) to serve a late notice of claim upon the New York City Health and Hospitals Corporation as a condition precedent to the institution of an action against employees of the corporation, and (2) to conduct an examination before trial to aid in framing a complaint and identifying prospective defendants, the New York City Health and Hospitals Corporation, appeals from an order of the Supreme Court, Kings County (Kartell, J.), dated August 19, 1980, which granted the application. Order affirmed, with $50 costs and disbursements. The examination shall proceed at the place designated in the order under review, at a time to be fixed in a written notice of not less than 10 days, to be given by petitioner, or at such other time and place as the parties may agree. The infant claimant was allegedly injured at the time of her birth in 1974 due to the negligence of certain employees of the appellant. At that time there was no duty upon her to serve a notice of claim upon appellant in order to maintain an action against its employees (see Bender v Jamaica Hosp., 40 NY2d 560). Therefore, she cannot be, as appellant suggests, subject to the provisions of section 50-e of the General Municipal Law as they existed at the time of her injury. Rather, she is subject to the provisions of section 50-e as they existed at the time the duty to serve a notice of claim arose; those provisions are the same as they are today. Special Term correctly applied said provisions in granting leave to serve a late notice of claim. Furthermore, petitioner has set forth a prima facie case in the affidavits submitted in support of the application and, therefore, the granting of leave to conduct an examination before trial in order to aid in framing a complaint and determining the identity of specific prospective defendants was likewise proper (see Peterman v Schpelman, 274 App Div 901; Cidilko v Palestine, 24 Misc 2d 19; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3102:4, p 263). Cohalan, J.P., Margett, O’Connor and Thompson, JJ., concur.