Opinion
1083, 16476/02.
05-10-2016
YESSENIA D., as Mother and Natural Guardian of Franklin D., Plaintiff–Appellant, v. NEW YORK CITY HEALTH & HOSPITALS CORPORATION, Defendant–Respondent.
Ronemus & Vilensky, LLP, New York (Robert Vilensky of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Marta Ross of counsel), for respondent.
Ronemus & Vilensky, LLP, New York (Robert Vilensky of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Marta Ross of counsel), for respondent.
Opinion
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered March 10, 2015, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.
Plaintiff, suing on behalf of her infant son, failed to serve a timely notice of her medical malpractice claim (General Municipal Law § 50–e[1][a] ) and failed to seek leave to file a late notice of claim, pursuant to General Municipal Law § 50–e(5), within the applicable statute of limitations, as tolled due to the injured plaintiff's infancy (CPLR 208 ). The fact that plaintiff served a late notice of claim before the statute of limitations had expired is of no moment, because she had not obtained leave of the court (see Croce v. City of New York, 69 A.D.3d 488, 893 N.Y.S.2d 48 [1st Dept.2010] ).
The record is devoid of evidence of “affirmative wrongdoing” that would support the application of equitable estoppel against defendant (see Walker v. New York City Health & Hosps. Corp., 36 A.D.3d 509, 510, 828 N.Y.S.2d 365 [1st Dept.2007] ). Contrary to plaintiff's contention, defendant was under no obligation to notify her before the statute of limitations had expired that her notice of claim was not timely (see Wollins v. New York City Bd. of Educ., 8 A.D.3d 30, 31, 777 N.Y.S.2d 637 [1st Dept.2004] ). Defendant's denial of the allegation in the complaint that the notice of claim was timely filed put plaintiff on notice of the issue before the statute of limitations had expired (see e.g. Scantlebury v. New York City Health & Hosps. Corp., 4 N.Y.3d 606, 613, 797 N.Y.S.2d 394, 830 N.E.2d 292 [2005] ). Nor does the fact that defendant continued litigating the matter for approximately 10 years before moving to dismiss justify the application of estoppel (see Walker, 36 A.D.3d at 510, 828 N.Y.S.2d 365 ).
MAZZARELLI, J.P., RENWICK, SAXE, GISCHE, KAHN, JJ., concur.