The opinion
Weinstein, J. (concurring).
While I have no quarrel with the result reached by the majority, I have chosen to present my views in a separate opinion in order to avoid the possibility of confusing my own views on the nature of the New York City Health and Hospitals Corporation with those of my colleagues.
The issue presented for resolution on this appeal is whether plaintiff was properly permitted to file a supplemental notice of claim nunc pro tunc to include allegations of medical malpractice arising from his care, treatment and confinement at two hospitals not mentioned in his original claim. Under the circumstances of this case, I conclude that he was not.
On July 11,1979, plaintiff was treated at the emergency room of Coney Island Hospital for injuries which he had *142 sustained in a motor vehicle accident. Plaintiff had been injured when the motorcycle on which he was a passenger was hit by a car. He entered the emergency room complaining of pain in his “whole left side”. Plaintiff received sutures on his right cheek below the right eye and was sent to the X-ray department. He was subsequently released without being admitted to the hospital and given a prescription for pain killers with instructions to return to the hospital if the pain persisted. Plaintiff returned to the emergency room for the removal of his sutures on July 18, 1979.
After his accident, plaintiff complained of pain in the lower back and sacral area and was referred from the emergency room to the physical therapy unit of Coney Island Hospital. Hospital records reveal that he subsequently received seven diathermy treatments. During the course of the year following his accident, plaintiff returned to Coney Island Hospital on several other occasions complaining of pains on the left side of his body. His last three recorded visits to that hospital were on March 29, 1980, July 7, 1980 and August 4, 1980. In the interim, plaintiff had consulted several private physicians, including a urologist and a neurologist.
At some point after his accident, plaintiff began to complain of difficulties regarding his urinary and excretory functions. Although he mentioned this problem to his mother and to his private physicians, he never mentioned it to anyone at Coney Island Hospital since he was no longer undergoing treatment there at the time he became aware of his condition. In August, 1980, plaintiff was referred by Dr. Zuckerman, a neurologist whom he had consulted, to Dr. Kasy of Metropolitan Hospital. The latter had him admitted to Metropolitan Hospital where he was found to be suffering paralysis. Plaintiff. underwent surgery at Metropolitan Hospital on August 11 and 20, 1980 for the removal of a spinal tumor. He was hospitalized at that facility for six and one-half weeks.
On August 25, 1980, plaintiff, while hospitalized at Metropolitan Hospital, caused a notice of claim to be served upon the New York City Health and Hospitals Corporation relating to Coney Island Hospital’s failure to *143 promptly diagnose the spinal tumor located at the lower base of his spine.
Upon his release from Metropolitan Hospital, plaintiff was referred to Kings County Hospital where he received radiation treatment for the spinal tumor for a period of two and one-half to three months. In February, 1981, he underwent a procedure for removal of bladder stones at Kings County Hospital and remained hospitalized there for 13 days.
After his spinal surgery, plaintiff began to complain of incontinency of urine. A statutory city comptroller’s hearing was conducted on March 30, 1981 with respect to the Coney Island Hospital claim. At that time, plaintiff was compelled to wear a diaper due to this condition. He was, at that time, going back to Kings County Hospital for treatment on a monthly basis.
On or about July 2, 1981, plaintiff moved, inter alia, to supplement nunc pro tunc the original notice of claim as related to defendant Coney Island Hospital so as to include Metropolitan and Kings County Hospitals. In support thereof, plaintiff alleged that the urine incontinency, which first manifested itself during the period of his postoperative care at Metropolitan Hospital, resulted from acts of surgical and medical malpractice on the parts of Dr. Kasy and other physicians at Metropolitan and Kings County Hospitals. By order dated October 23, 1981, the court (Aronin, J.), denied, without prejudice to renew, that branch of plaintiff’s motion which sought permission to supplement the original notice of claim nunc pro tunc. The court based its decision upon the following reasoning, as set forth in its memorandum of August 27, 1981:
“A notice of claim against a municipality must be filed ‘within 90 days after the claim arose’ (General Municipal Law, § 50-e, subd 1). The respondents contend that the plaintiff’s original notice of claim was untimely. If they are correct, then supplementation of the original notice would have to be denied. A cause of action accrues on the date of the alleged negligence or malpractice. Here, the date appears to be July 11,1979 and the notice of claim was served on August 25, 1980.
*144 “The plaintiff has submitted no factual information from which the court could conclude that service of the original notice of claim was timely. If the timeliness of the original notice of claim rests on a ‘continuous treatment’ formula, supporting facts must be presented (Fonda v Paulsen, 46 AD2d 540 ; see also McKinney’s CPLR, Practice Commentary and Supplementary Practice Commentaries to CPLR 214-a by Joseph McLaughlin 1975, 1979).
“In addition, if plaintiff seeks leave to file a delayed notice of claim nunc pro tunc with respect to the care and treatment rendered by Metropolitan Hospital and Kings County Hospital pursuant to General Municipal Law 50 (e) (5), he is required to set forth various pertinent facts including whether ‘the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter’.”
Plaintiff’s subsequent motion to supplement his notice of claim nunc pro tunc was granted without opinion by order of Special Term (Shaw, J.), dated February 8, 1982. The appeal is from this order. It has been taken solely on behalf of the municipal defendants. Defendants Kasy and Reddy are not parties to this appeal in their individual capacities. While the city is obligated to defend and indemnify employees of the New York City Health and Hospitals Corporation upon such employees’ timely notification to the city of the charges pending against them (General Municipal Law, § 50-k, subds 2-4 [L 1979, ch 673; § 9]), there is no evidence on record that defendant doctors have chosen to avail themselves of this statutory right.
The initial inquiry should focus upon the timeliness of the notice of claim served upon defendant Coney Island Hospital on August 25,1980, inasmuch as a notice which is untimely in its inception may not later be supplemented nunc pro tunc.
It bears noting at the outset that the New York City Health and Hospitals Corporation is a public benefit corporation independent of the City of New York (Brennan v City of New York, 59 NY2d 791 ; New York City Health and Hospitals Corporation Act, § 4 [L 1969, ch 1016, § 1]). In *145 my view, this implies that service of a notice of claim upon the New York City Health and Hospitals Corporation or any of its branches does not automatically make the city a part of the action. I strongly disagree with any implication that all medical facilities under the aegis of the New York City Health and Hospitals Corporation are to be regarded as a single entity for purposes of litigation. I am more inclined, rather, to subscribe to the municipal defendants’ proposition that the Legislature intended that each facility comprising the municipal corporation remain a separate and distinct entity, at least for purposes of service. This in no way implies, however, that treatment at two or more municipal institutions can never provide an appropriate scenario for the invocation of the continuous treatment doctrine. The 90-day notice of claim period would be tolled, for instance, if the facts established the existence of a close nexus between the successive hospitals such that the sequence of medical treatments administered to plaintiff at the respective institutions constituted a single continuous course of treatment (see Cotto v City of New York, 99 AD2d 748 ). Thus, unless the sequence of medical treatment which plaintiff received at these three municipal hospitals can be considered a single continuous course of treatment, each of the defendant hospitals should be considered a separate entity with the result that service of a notice of claim upon one will not be tantamount to service upon the others.
Section 50-e (subd 1, par [a]) of the General Municipal Law requires as a condition precedent to the commencement of an action against a public corporation, any officer, appointee or employee thereof, that the plaintiff serve a notice of claim within 90 days after the claim arises. At bar, plaintiff’s claim originally accrued on July 11, 1979, when he was treated at Coney Island Hospital for injuries sustained in a motor vehicle accident.
The Court of Appeals has held in Borgia v City of New York ( 12 NY2d 151 ), that the “continuous treatment” rule could postpone the commencement of suit until years after the alleged acts of malpractice. The court defined “continuous treatment” as “treatment for the same or related illnesses or injuries, continuing after the alleged acts of malpractice, not mere continuity of a general physician-patient relationship” (supra, p 157). It has further been *146 held that: “continuous treatment does not contemplate circumstances where a patient initiates return visits merely to have his or her condition checked * * * The Statute of Limitations may begin to run ‘once a hospital or physician considers the patient’s treatment to be completed and does not request the patient to return for further examination’ * * * This is not to say, however, that a complete discharge by a physician forever bars a finding of continuing treatment. Included within the scope of ‘continuous treatment’ is a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment. Thus, there will be continuing treatment when a patient, instructed that he or she does not need further attention, soon returns to the doctor because of continued pain in that area for which medical attention was first sought” (McDermott v Torre, 56 NY2d 399, 405-406 ).
The mere existence of a time interval between a plaintiff’s contacts with a defendant hospital or physician does not per se preclude a finding that the plaintiff’s treatment was continuous (see Fonda v Paulsen, 46 AD2d 540 ). Where a patient continues under postoperative observation by his physician and is advised that his condition is being cured, this is as much “treatment” as are affirmative acts such as surgery, therapy, or the prescription of medicine (Fonda v Paulsen, supra, p 543 ).
Where the continuous treatment rule is invoked, the doctrine serves as a toll, such that the patient will not be compelled to initiate judicial proceedings so long as the physician continues to treat the injury (McDermott v Torre, 56 NY2d 399, 407 , supra).
The continuous treatment exception is premised upon the doctrinal assumption that a patient who has placed his trust and confidence in a hospital’s medical staff and is hence in no position to question his physician’s techniques, has a right to rely upon the doctor’s professional skill without the necessity of interrupting a continuous course of treatment by instituting suit. The exception thus provides the patient with an opportunity to seek corrective treatment from the doctor as well as affording the physician a reasonable chance to identify and correct errors *147 made at a prior stage of treatment (Barrella v Richmond Mem. Hosp., 88 AD2d 379, 383 ).
In order to come within the continuous treatment exception, the plaintiff in the instant case must prove that his sporadic appearances at Coney Island Hospital subsequent to his discharge can be characterized as constituting medical treatment which includes the wrongful acts or omissions related to his original condition or complaint (Charalambakis v City of New York, 46 NY2d 785 ).
After being treated for the injuries sustained in the July, 1979 motor vehicle accident, plaintiff made several widely scattered appearances at Coney Island Hospital with diffuse complaints. He complained on October 1,1979 of lower back pain and on November 9,1979 of pain and swelling of the left ear lobe. On March 29, 1980, plaintiff was diagnosed as suffering from low back pain. His last recorded visits to the emergency room of Coney Island Hospital were on July 7, 1980 and August 4, 1980. Hospital records reveal that although plaintiff was called for treatment at three separate times on July 7, 1980, a recording of “no answer” was made on each occasion. The notation for August 4, 1980 is that “patient walked out”.
It is apparent from the record that plaintiff did not subject himself to treatment on either of the latter two dates. He was not seen by a physician on either date. The mere act of registering at the desk of an emergency room and having one’s vital signs recorded cannot be characterized as constituting medical services (see Davis v City of New York, 38 NY2d 257, 260 ). Plaintiff’s last recorded treatment at Coney Island Hospital occurred on March 29, 1980. Thus, he received no medical treatment within 90 days of service of his notice of claim. By plaintiff’s own admission, he was no longer being treated at Coney Island Hospital when the problem leading to the discovery of his spinal tumor was noted. Nor was the running of the 90-day notice of claim period tolled as a result of the treatment subsequently received by plaintiff at Metropolitan or Kings County Hospitals. There was no close nexus between Coney Island and Metropolitan Hospitals which could have established that the sequence of medical treatments ad *148 ministered to plaintiff at the respective institutions constituted a single continuous course of treatment. Unlike the situation in Cotto v City of New York ( 99 AD2d 748 , supra), there was no direct referral of plaintiff to the subsequent hospitals by the first hospital where he received treatment for the underlying ailment. Plaintiff was referred to Metropolitan Hospital by his private physician. Nor was there any evidence at bar of a formal agreement between the defendant hospitals which effectively put one in a supervisory capacity vis-a-vis the others (cf. Cotto v City of New York, supra). On these facts, it is reasonable to infer that plaintiff considered his treatment at Coney Island Hospital to have been completed at the time of his referral to Metropolitan Hospital. Defendant Coney Island Hospital had no continuing responsibility for the medical treatment subsequently received by plaintiff at Metropolitan and Kings County Hospitals. McDermott v Torre ( 56 NY2d 399, 405 , supra), is consistent with the proposition that single discrete acts performed by an independent physician or hospital may be complete standing alone.
Accordingly, the notice of claim served on August 25, 1980 was untimely as against defendant Coney Island Hospital. To hold otherwise would constitute an unwarranted extension of the doctrine enunciated in Borgia v City of New York ( 12 NY2d 151 , supra). Thus, although defendant Coney Island Hospital may well have been responsible for failing to timely diagnose the seriousness of plaintiff’s condition, the action against it must be dismissed in view of plaintiff’s failure to have timely served a notice of claim. Inasmuch as plaintiff’s notice of claim was untimely, it may not be supplemented in the manner now sought.
The law is clear that courts have discretion to permit a plaintiff to serve a late notice of claim nunc pro tunc provided that the term of the extension does not exceed the one year and 90-day limitation set forth for the commencement of such actions (General Municipal Law, §§ 50-i, 50-e, subd 5; Pierson v City of New York, 56 NY2d 950 ; Moore v City of New York, 84 AD2d 526 , affd 56 NY2d 950 ; Cintron v City of New York, 82 AD2d 796 ; Walcott v Village of Cazenovia, 91 Misc 2d 437 , affd 65 AD2d 671 ). The statutory period for commencing an action against defendant *149 Coney Island Hospital expired in June, 1981, one year and 90 days from the date of plaintiff’s last recorded treatment there on March 29, 1980. No application to serve a late notice of claim was made by plaintiff within that time period. Notwithstanding the fact that defendants Metropolitan and Kings County Hospitals had actual knowledge, via plaintiff’s motion to supplement his notice of claim nunc pro tunc, of the essential facts constituting the malpractice claims against them (see Matter of Newson v City of New York, 87 AD2d 630 ), no application for late service relief pursuant to section 50-e (subd 1, par [a]) of the General Municipal Law was ever made. In view of this fatal omission, an action against these defendants is time barred (see Silbernagel v City of New York, 57 NY2d 691 , revg 85 AD2d 586 ). Accordingly, plaintiff’s application to supplement his notice of claim should have been denied. Inasmuch as plaintiff has failed to comply with a condition precedent to the commencement of an action against the municipal defendants . (General Municipal Law, § 50-e, subd 1, par [a]), he no longer has a viable claim against them.
Titone, J. P., and Lazer, J., concur with Boyers, J.; Weinstein, J., concurs in a separate opinion.
Order of the Supreme Court, Kings County, dated February 8, 1982, reversed, on the law and the facts, without costs or disbursements, and application denied.