Rosemary Martinson and Dylan Braverman secured dismissal of a petition seeking leave to serve a late notice of claim asserting medical malpractice and conscious pain and suffering claims against a major municipal hospital system. Petitioner’s counsel sought to pursue claims alleging negligent care and treatment of a sacral pressure ulcer, which allegedly led to sepsis and the patient’s wrongful death. The BPN team successfully argued that the deadline to seek leave to serve a late notice of claim had expired, requiring dismissal of the petition.

In a seven-page decision, the Supreme Court, New York County (Justice Kelley), agreed, holding that when a plaintiff moves for leave to serve a late notice of claim after the applicable statute of limitations has expired, the court lacks discretion to entertain the application and the petition must be dismissed. Here, the Court found that the conscious pain and suffering claim accrued on November 19, 2023, the date of the decedent’s death. The applicable limitations period for that claim was one year and 90 days, but the petition for leave to serve a late notice of claim was not filed until more than eight months after that period expired, requiring dismissal. Following issuance of the Court’s decision, plaintiff’s counsel discontinued the related Supreme Court action against the hospital system.