Rodriguez v. New York City Health & Hospitals

— In a proceeding, inter alia, for leave 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, the New York City Health and Hospitals Corporation appeals from an order of the Supreme Court, Kings County (Yoswein, J.), dated January 5,1981, which granted, inter alia, leave to serve a late notice of claim. Order affirmed, with $50 costs and disbursements. The infant claimant was allegedly injured at the time of her birth in 1973 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, as this court' held in Matter of Perez v New York City Health & Hasps. Corp. (84 AD2d 789, 790), the claimant cannot be “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”. In this instance Special Term properly applied said provisions and granted leave to serve a late notice of claim. Damiani, J. P., Lazer, Gibbons and Rubin, JJ., concur.