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ELLA SHISTER, ETC., appellants, v. CITY OF NEW YORK, ET AL., defendants, NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, respondent.

DECISION ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was to dismiss the complaint insofar as asserted against the defendant New York City Health and Hospitals Corporation is denied, and the complaint is reinstated insofar as asserted against that defendant.

Contrary to the contention of the defendant New York City Health and Hospitals Corporation (hereinafter HHC), the plaintiffs timely sought leave to serve a late notice of claim by filing an order to show cause commencing a special proceeding seeking that relief before the governing statute of limitations expired ( see Benejan v. New York City Tr. Auth., 306 A.D.2d 1). The statute of limitations was tolled from the time the plaintiffs commenced their proceeding until the subsequent order granting them leave became effective ( see Giblin v. Nassau County Med. Ctr., 61 N.Y.2d 67, 74; Cruz v. City of New York, 302 A.D.2d 553), and therefore their action was timely commenced.

We decline to address HHC's remaining contention, as it was not ruled upon by the Supreme Court ( see Pepe v. Tannenbaum, 262 A.D.2d 381, 383; Katz v. Katz, 68 A.D.2d 536, 542-543).

ALTMAN, J.P., H. MILLER, ADAMS and TOWNES, JJ., concur.

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SHISTER v. CITY OF NEW YORK
(Oct 27, 2003)