Opinion
February 14, 1994
Appeal from the Supreme Court, Queens County (Rutledge, J.).
Ordered that the order as amended is modified, on the law, (1) by deleting the provision thereof granting the plaintiff's cross motion and substituting therefor a provision denying the cross motion, and (2) by deleting the provision thereof denying that branch of the appellant's motion which was to dismiss the plaintiff's first cause of action for conscious pain and suffering and substituting therefor a provision granting that branch of the motion; as so modified, the order as amended is affirmed, with costs payable to the appellant.
The court was without the discretion to grant the plaintiff's cross motion, as it was not made within one year and 90 days after the claim for conscious pain and suffering accrued (see, General Municipal Law § 50-e; Pierson v. City of New York, 56 N.Y.2d 950; Matter of Rasmussen v. Nassau County Med. Ctr., 181 A.D.2d 679). Contrary to the plaintiff's contention, equitable estoppel does not lie. The defendant-appellant was not under a duty to raise the failure to give a timely notice of claim as an affirmative defense (see, Ceely v. New York City Health Hosps. Corp., 162 A.D.2d 492; see generally, Matter of Parkview Assocs. v. City of New York, 71 N.Y.2d 274, cert denied 488 U.S. 801). Accordingly, we deny the plaintiff's cross motion to deem his late notice of claim timely served, and we grant that branch of the defendant-appellant's motion which was to dismiss the untimely cause of action to recover damages for conscious pain and suffering. Sullivan, J.P., Rosenblatt, Copertino and Hart, JJ., concur.