LAROC v. CITY OF NEW YORK (2007)

In an action, inter alia, to recover damages for medical malpractice and negligence, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated June 30, 2006, as denied that branch of the motion of the defendants City of New York, New York City Police Department, and New York City Department of Corrections which was to dismiss the complaint insofar as asserted against those defendants for failure to serve a notice of claim pursuant to General Municipal Law § 50–e.

ORDERED that the appeal by the defendants New York City Health and Hospitals Corporation, Kings County Hospital Center, Thomas Chi, Ivan Rubel, Matthew Goldman, and Moshe Wilker is dismissed as abandoned;  and it is further,

ORDERED that the order is reversed insofar as appealed from by the defendants City of New York, New York City Police Department, and New York City Department of Corrections, on the law, and that branch of the motion of the defendants City of New York, New York City Police Department, and New York City Department of Corrections which was to dismiss the complaint insofar as asserted against them is granted;  and it is further,

ORDERED that one bill of costs is awarded to the defendants City of New York, New York City Police Department, and New York City Department of Corrections.

 Service of a notice of claim within 90 days after accrual of the claim is a condition precedent to the commencement of a tort action against the defendants City of New York, New York City Police Department, and New York City Department of Corrections (hereinafter the defendants) (see General Municipal Law §§ 50–e[1][a], 50–i[1][a];  Maxwell v. City of New York, 29 A.D.3d 540, 541, 815 N.Y.S.2d 133).  Although the law permits late service of a notice of claim by leave of court under some circumstances, the plaintiffs were required to move for leave to serve a late notice of claim pursuant to General Municipal Law § 50–e(5) within one year and 90 days of the date that the claims accrued (see Small v. New York City Tr. Auth., 14 A.D.3d 690, 789 N.Y.S.2d 229;   Santiago v. City of New York, 294 A.D.2d 483, 742 N.Y.S.2d 566).  The claims asserted by the adult plaintiff against the defendants, which were based on allegations that they withheld medical treatment from her son, the infant plaintiff, between October 19, 2003, and October 20, 2003, accrued on October 20, 2003, when the infant plaintiff was released from confinement (see Charnis v. Shohet, 2 A.D.3d 663, 768 N.Y.S.2d 638;  Roche v. Village of Tarrytown, 309 A.D.2d 842, 766 N.Y.S.2d 46).  The adult plaintiff failed to serve her notice of claim within 90 days after October 20, 2003, and her late service of a notice of claim without leave of court was a nullity (see Matter of White v. New York City Hous. Auth., 38 A.D.3d 675, 831 N.Y.S.2d 515;  Maxwell v. City of New York, 29 A.D.3d at 541, 815 N.Y.S.2d 133;   Santiago v. City of New York, 294 A.D.2d 483, 742 N.Y.S.2d 566).

While the infant plaintiff's claims were tolled by the period of his infancy, which expired on December 25, 2003 (see CPLR 208;  Henry v. City of New York, 94 N.Y.2d 275, 278, 702 N.Y.S.2d 580, 724 N.E.2d 372), he did not timely serve a notice of claim within 90 days of December 25, 2003, and neither he nor his mother made a timely application for leave to serve a late notice of claim.  Thus, the defendants were entitled to dismissal of the complaint insofar as asserted against them (see Pierson v. City of New York, 56 N.Y.2d 950, 954, 453 N.Y.S.2d 615, 439 N.E.2d 331;  Maxwell v. City of New York, 29 A.D.3d at 541, 815 N.Y.S.2d 133;  Herrera v. Duncan, 13 A.D.3d 485, 787 N.Y.S.2d 88).

 Contrary to the plaintiffs' contention, the defendants were under no obligation to plead, as an affirmative defense, the plaintiffs' failure to comply with the statutory notice of claim requirement (see Maxwell v. City of New York, 29 A.D.3d at 541, 815 N.Y.S.2d 133;  Lynch v. New York City Tr. Auth., 12 A.D.3d 644, 646, 784 N.Y.S.2d 900;  Ames v. City of New York, 280 A.D.2d 625, 626, 720 N.Y.S.2d 829).  The defendants' participation in pretrial discovery did not preclude them from raising the untimeliness of the notice of claim (see Hall v. City of New York, 1 A.D.3d 254, 256, 768 N.Y.S.2d 2;  Lavalliere v. Department of Correction of City of N.Y., 304 A.D.2d 370, 371, 759 N.Y.S.2d 8), nor did the defendants engage in any conduct that would give rise to an estoppel (see Camarella v. East Irondequoit Cent. School Bd., 34 N.Y.2d 139, 356 N.Y.S.2d 553, 313 N.E.2d 29;  Maxwell v. City of New York, 29 A.D.3d at 541, 815 N.Y.S.2d 133;  Walter H. Poppe Gen. Contr. v. Town of Ramapo, 280 A.D.2d 667, 668, 721 N.Y.S.2d 248).