MAXWELL v. CITY OF NEW YORK (2006)

In an action to recover damages for medical malpractice, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (LeVine, J.), dated July 21, 2004, as denied that branch of their motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint on the ground that the plaintiffs failed to serve a timely notice of claim.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendants' motion which was to dismiss the complaint for failure to serve a timely notice of claim is granted, and the complaint is dismissed.

 Service of a notice of claim within 90 days after accrual of the claim is a condition precedent to commencing an action against the defendants herein (see General Municipal Law §§ 50-e[1][a];  50-i[1][a];  McKinney's Uncons. Laws of N.Y. § 7401[2];  Scantlebury v. New York City Health & Hosps. Corp., 4 N.Y.3d 606, 609-610, 797 N.Y.S.2d 394, 830 N.E.2d 292;  Perry v. City of New York, 238 A.D.2d 326, 656 N.Y.S.2d 301;  see also Small v. New York City Tr. Auth., 14 A.D.3d 690, 789 N.Y.S.2d 229).   The plaintiffs failed to serve their notice of claim within the statutory period, and their late service without leave of court was a nullity (see Santiago v. City of New York, 294 A.D.2d 483, 742 N.Y.S.2d 566;  Henry v. Aguilar, 282 A.D.2d 711, 724 N.Y.S.2d 325;  Kokkinos v. Dormitory Auth. of State of N.Y., 238 A.D.2d 550, 551, 657 N.Y.S.2d 81).

The plaintiffs were required to move within one year and 90 days of the accrual date of the claim for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e(5) (see Small v. New York City Tr. Auth., supra;  Santiago v. City of New York, supra ).   Since the plaintiffs failed to make a timely application for such relief, the defendants were entitled to dismissal of the complaint (see Pierson v. City of New York, 56 N.Y.2d 950, 453 N.Y.S.2d 615, 439 N.E.2d 331;  Herrera v. Duncan, 13 A.D.3d 485, 787 N.Y.S.2d 88).

 The plaintiffs' argument that the defendants should be estopped from asserting as a defense their failure to serve a timely notice of claim is without merit.   The defendants were under no obligation to plead, as an affirmative defense, the plaintiffs' failure to comply with the statutory requirement (see 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;  Ceely v. New York City Health & Hosps. Corp., 162 A.D.2d 492, 493, 556 N.Y.S.2d 694), and the defendants did not engage in any conduct that would give rise to an estoppel (see Wade v. New York City Health & Hosps. Corp., 16 A.D.3d 677, 793 N.Y.S.2d 68;  Cappadonna v. New York City Tr. Auth., 187 A.D.2d 691, 692, 590 N.Y.S.2d 274;  Nicholas v. City of New York, 130 A.D.2d 470, 515 N.Y.S.2d 53).

In light of this determination, we need not address the defendants' remaining contentions.