TEITELL v. COUNTY OF WESTCHESTER

ORDERED that the cross appeal is dismissed for failure to perfect the same in accordance with the rules of this court (see, 22 NYCRR 670.8 [c], [e]); and it is further,

ORDERED that order is affirmed insofar as appealed from; and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

The plaintiff was a patient in the defendants' hospital when she fell on December 3, 1997. She remained under the hospital's care until December 5, 1997. The plaintiff served her notice of claim on March 5, 1998, alleging, inter alia, that the defendants failed to properly restrain her to prevent the fall, and failed to diagnose and treat the injuries sustained in the fall.

We agree with the Supreme Court that so much of the complaint as sought to recover damages based on the allegations that the plaintiff fell due to a lack of restraints was based on ordinary negligence, and not subject to the continuous treatment doctrine (see, Papa v. Brunswick Gen. Hosp., 132 A.D.2d 601; cf., McKoy v. County of Westchester, 272 A.D.2d 307). Thus, the plaintiff's notice of claim as to that portion of the complaint was untimely served (see, General Municipal Law § 50-e).