WADE v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (2005)

In an action to recover damages for medical malpractice, the plaintiffs appeal from an order of the Supreme Court, Queens County (Levine, J.), dated May 30, 2003, which granted the defendant's motion to dismiss the complaint for failure to serve a timely notice of claim pursuant to General Municipal Law § 50-e and denied their cross motion to deem the notice of claim timely served nunc pro tunc.

ORDERED that the order is affirmed, with costs.

 Contrary to the plaintiffs' assertion, the defendant was under no obligation to apprise the plaintiffs that their notice of claim had not been timely served upon it.   Nor did the defendant's participation in the litigation prior to bringing its motion to dismiss preclude it from seeking dismissal on this ground since the failure to serve a timely notice of claim may be raised any time prior to trial (see Davis v. City of New York, 250 A.D.2d 368, 673 N.Y.S.2d 79;  Frank v. City of New York, 240 A.D.2d 198, 658 N.Y.S.2d 293).   The Supreme Court correctly rejected the plaintiffs' equitable estoppel claim since estoppel 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 (see Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d 662, 382 N.Y.S.2d 18, 345 N.E.2d 561;  Matter of Dockery v. Department of Hous. Preservation & Dev. of City of N.Y., 223 A.D.2d 705, 637 N.Y.S.2d 183;  Campbell v. City of New York, 203 A.D.2d 504, 611 N.Y.S.2d 248).   The plaintiffs failed to demonstrate that the defendant engaged in any misleading conduct which would support a finding of equitable estoppel (see Brown v. City of New York, 264 A.D.2d 493, 694 N.Y.S.2d 461).

The plaintiffs' remaining contention is without merit.