Opinion
April 21, 1992
Appeal from the Supreme Court, New York County (Eugene L. Nardelli, J.).
The IAS court's finding that plaintiff did not serve a notice of claim is based upon its evaluation of the hearing testimony and should not be disturbed. "On a bench trial, the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses" (Claridge Gardens v Menotti, 160 A.D.2d 544, 544-545). Nor is there merit to plaintiff's other argument that defendant's acknowledgment of receipt of the summons and complaint estops it from asserting lack of notice. It is well settled that service of the summons and complaint does not constitute a valid notice of claim (Davidson v Bronx Mun. Hosp., 64 N.Y.2d 59), and plaintiff's reliance on Bender v New York City Health Hosps. Corp. ( 38 N.Y.2d 662) for its estoppel argument cannot avail absent a showing of any wrongful or negligent acts by defendant that lulled plaintiff into believing that it could proceed without a notice of claim.
Concur — Sullivan, J.P., Ellerin, Wallach and Rubin, JJ.