Opinion
2020-03364 Index No. 523220/16
05-10-2023
Vitaly PALES, etc., et al., respondents v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., appellants, et al., defendants.
Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Scott Shorr and Lorenzo Di Silvio of counsel), for appellants. McCarney Law P.C., New York, NY (James G. McCarney of counsel), for respondents.
Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Scott Shorr and Lorenzo Di Silvio of counsel), for appellants.
McCarney Law P.C., New York, NY (James G. McCarney of counsel), for respondents.
BETSY BARROS, J.P., JOSEPH J. MALTESE, JOSEPH A. ZAYAS, DEBORAH A. DOWLING, JJ.
DECISION & ORDER In an action to recover damages for medical malpractice and wrongful death, etc., the defendants New York City Health and Hospitals Corporation and Coney Island Hospital appeal from an order of the Supreme Court, Kings County (Marsha L. Steinhardt, J.), dated February 21, 2020. The order, insofar as appealed from, denied those defendants’ motion to dismiss the amended complaint insofar as asserted against them for failure to serve a timely notice of claim.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In 2016, Raisa Pales (hereinafter the decedent), and her husband suing derivatively, commenced this action against the defendants New York City Health and Hospitals Corporation and Coney Island Hospital (hereinafter together the hospital defendants), among others, inter alia, to recover damages for medical malpractice after serving a notice of claim on the New York City Comptroller. In 2017, following the decedent's death, Vitaly Pales, as administrator of the decedent's estate, and the decedent's husband (hereinafter together the plaintiffs) served an amended notice of claim on the New York City Comptroller and an amended complaint, among other things, adding causes of action to recover damages for wrongful death. Thereafter, in April 2019, the hospital defendants moved to dismiss the amended complaint insofar as asserted against them on the ground that the plaintiffs failed to serve a timely notice of claim on them. In an order dated February 21, 2020, the Supreme Court, inter alia, denied the hospital defendants’ motion on the ground that they were equitably estopped from asserting failure to serve a timely notice of claim as a defense. The hospital defendants appeal. Generally, timely service of a notice of claim is a condition precedent to commencing an action against a public corporation (see McKinney's Uncons Laws of N.Y. § 7401[2] [New York City Health and Hospitals Corporation Act § 20(2), as added by L 1969, ch 1016, sec 1, § 20, as amended by L 1990, ch 804, § 122]; General Municipal Law § 50–e[1][a] ; Watts v. City of New York, 186 A.D.3d 1574, 1575, 131 N.Y.S.3d 62 ; Matter of Ryan v. New York City Tr. Auth., 110 A.D.3d 902, 973 N.Y.S.2d 312 ). Where a plaintiff fails to timely serve a notice of claim or to timely move for leave to extend the time to serve a notice of claim (see General Municipal Law § 50–e[5] ), the court is without authority to grant the plaintiff leave absent a finding of equitable estoppel (see Watts v. City of New York, 186 A.D.3d at 1575, 131 N.Y.S.3d 62 ). " ‘[E]stoppel against a municipal defendant will lie only when the municipal defendant's conduct was calculated to, or negligently did, mislead or discourage a party from serving a timely notice of claim and when that conduct was justifiably relied upon by that party’ " ( Khela v. City of New York, 91 A.D.3d 912, 914, 937 N.Y.S.2d 311, quoting Mohl v. Town of Riverhead, 62 A.D.3d 969, 970, 880 N.Y.S.2d 313 [internal quotation marks omitted]; see Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d 662, 668, 382 N.Y.S.2d 18, 345 N.E.2d 561 ; Konner v. New York City Tr. Auth., 143 A.D.3d 774, 776, 39 N.Y.S.3d 475 ). " ‘The doctrine of equitable estoppel is to be invoked sparingly and only under exceptional circumstances’ " ( Sanchez v. Jericho S.D., 180 A.D.3d 828, 830, 120 N.Y.S.3d 163, quoting Ceely v. New York City Health & Hosps. Corp., 162 A.D.2d 492, 493, 556 N.Y.S.2d 694 ; see Incorporated Vil. of Freeport v. Freeport Plaza W., LLC, 206 A.D.3d 703, 703–704, 170 N.Y.S.3d 166 ).
Here, the notice of claim and the amended notice of claim served on the New York City Comptroller were not sufficient to constitute the requisite service on the hospital defendants (see Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d at 665–666, 382 N.Y.S.2d 18, 345 N.E.2d 561 ; Watts v. City of New York, 186 A.D.3d at 1575, 131 N.Y.S.3d 62 ). However, the Supreme Court properly determined that, under the circumstances of this case, the hospital defendants were equitably estopped from raising a defense based on the plaintiffs’ failure to serve a timely notice of claim on them. The plaintiffs’ evidence submitted in opposition to the hospital defendants’ motion demonstrated that the hospital defendants negligently engaged in conduct that misled or discouraged the plaintiffs from serving a timely notice of claim, upon which the plaintiffs justifiably relied (see Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d at 668, 382 N.Y.S.2d 18, 345 N.E.2d 561 ; Singh v. Metropolitan Transp. Auth., 153 A.D.3d 1152, 59 N.Y.S.3d 897 ; Konner v. New York City Tr. Auth., 143 A.D.3d at 776, 39 N.Y.S.3d 475 ). Accordingly, the court properly denied the hospital defendants’ motion to dismiss the amended complaint insofar as asserted against them for failure to serve a timely notice of claim.
BARROS, J.P., MALTESE, ZAYAS and DOWLING, JJ., concur.