Opinion
5983 Index 21212/15E
03-15-2018
Ebony FLORES, Plaintiff–Appellant, v. Robert FRASER, M.D., et al., Defendants–Respondents.
Krentsel & Guzman, LLP, New York (Steven E. Krentsel of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondents.
Krentsel & Guzman, LLP, New York (Steven E. Krentsel of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondents.
Acosta, P.J., Richter, Kapnick, Kahn, Gesmer, JJ.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered December 16, 2016, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.Plaintiff commenced this action against defendant New York City Health and Hospital Corporation for medical malpractice allegedly committed by the individually named defendants during the course of their employment as emergency room physicians at Lincoln Medical and Mental Health Center (collectively HHC), in providing plaintiff with medical treatment on April 3, 2014.
The complaint was properly dismissed, because plaintiff cannot establish that a notice of claim was served as required by the October 7, 2014 order granting her leave to file a late notice of claim, and the one-year and 90–day statute of limitations has expired (see Young v. New York City Health & Hosps. Corp., 147 A.D.3d 509, 48 N.Y.S.3d 316 [1st Dept. 2017] ). The fact that plaintiff served the July 11, 2014 notice on HHC before the statute of limitations expired is of no moment, because she had not obtained leave of the court to serve that untimely notice (see Yessenia D. v. New York City Health & Hosps. Corp., 139 A.D.3d 454, 29 N.Y.S.3d 788 [1st Dept. 2016] ).
Although a General Municipal Law § 50–h hearing was conducted and HHC litigated the matter, this does not establish that HHC waived the statute of limitations defense (see Frank v. City of New York, 240 A.D.2d 198, 658 N.Y.S.2d 293 [1st Dept. 1997] ; compare King v. City of New York, 90 A.D.2d 714, 452 N.Y.S.2d 607 [1st Dept. 1982] ). Furthermore, there is no basis for estoppel given the clear language of the October 7, 2014 order directing plaintiff to serve a notice of claim upon HHC within 30 days of its entry and her awareness that the July 11, 2014 late notice of claim was a nullity (see Zayed v. N.Y.C. Dept. of Design & Construction, 157 A.D.3d 410, 66 NYS3d 124 [1st Dept. 2018] ; Cabreaja v. New York City Health & Hosps. Corp., 201 A.D.2d 319, 321–322, 607 N.Y.S.2d 633 [1st Dept. 1994] ).