Summary
In Badgett, the court held that service of a notice of claim upon the City of New York, rather than upon HHC did not constitute compliance with the notice of claim requirements for service upon HHC.
Summary of this case from Viruet v. City of New YorkOpinion
May 2, 1996
Appeal from the Supreme Court, New York County (Stanley Sklar, J.).
The IAS Court properly dismissed the complaint in this medical malpractice action on the ground of plaintiffs' failure to properly serve a notice of claim upon HHC within 90 days of the accrual of the cause of action, as required by the notice of claim provisions of General Municipal Law § 50-e and McKinney's Unconsolidated Laws of N Y § 7401 (2) (Health and Hospitals Corporation Act § 20 [2] [L 1969, ch 1016, § 1, as amended]; see, Nicholas v. City of New York, 130 A.D.2d 470). Service by plaintiffs of the notice of claim upon the City of New York, rather than upon HHC, does not constitute compliance with the notice of claim requirements for service upon HHC ( Brennan v City of New York, 59 N.Y.2d 791, 792; Kroin v. City of New York, 210 A.D.2d 95, 96).
The IAS Court also properly determined that HHC was not estopped from asserting plaintiffs' non-compliance, inasmuch as the doctrine of equitable estoppel is to be invoked sparingly and only under exceptional circumstances ( Matter of Gross v. New York City Health Hosps. Corp., 122 A.D.2d 793, 794), and since HHC was under no duty to raise plaintiffs' failure to properly serve a notice of claim on HHC as an affirmative defense or otherwise bring to plaintiffs' attention that the City of New York was not a proper party defendant ( Kroin v. City of New York, supra). While a municipal corporation may, by its conduct, waive an irregularity in the notice of claim, the requirements as to the manner or time of service may not be waived ( supra).
We have considered plaintiffs' remaining arguments and find them to be without merit.
Concur — Rosenberger, J.P., Wallach, Rubin, Kupferman and Mazzarelli, JJ.