Lopez v. New York City Health & Hospitals Corp.

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal, as limited by their briefs, from so much of an order of the Supreme Court, Kings County (Scholnick, J.), dated December 20, 1994, as upon reargument, denied the application of the plaintiff Ana Lopez for leave to serve a late notice of claim regarding the third cause of action, alleging physical and psychological injuries due to her fear of contracting the HIV virus.

Ordered that the order is affirmed insofar as appealed from, with costs.

*499The plaintiffs brought this action against the municipal defendant, inter alia, for its failure to properly diagnose and treat the plaintiff Oscar Lopez, who was allegedly HIV positive, and in the third cause of action, for negligent infliction of physical and emotional distress upon the plaintiff Ana Lopez because she continued to have sexual relations with her husband and feared that she had become infected. The plaintiffs sought leave to serve a late notice of claim (see, General Municipal Law § 50-e [5]). The defendant did not oppose that portion of the motion for leave to serve a late notice of claim on behalf of Oscar Lopez, but objected to that portion of the motion relating to Ana Lopez, arguing that it owed no duty to her and that, in any event, no excuse was provided to explain why her notice of claim was late.

The Supreme Court properly determined that no cognizable cause of action had been stated (see, Callas v Eisenberg, 192 AD2d 349; Goodman v Karlin, 159 AD2d 483). Bracken, J. P., Miller, Joy, Hart and Krausman, JJ., concur.