Opinion
2015-08-19
In the Matter of Ahdy L. ATTALLAH, appellant, v. NASSAU UNIVERSITY MEDICAL CENTER, et al., respondents.
Kevin T. Mulhearn, P.C., Orangeburg, N.Y., for appellant. Littler Mendelson P.C., Melville, N.Y. (William H. Ng and Amy L. Ventry–Kagan of counsel), for respondents.
Kevin T. Mulhearn, P.C., Orangeburg, N.Y., for appellant. Littler Mendelson P.C., Melville, N.Y. (William H. Ng and Amy L. Ventry–Kagan of counsel), for respondents.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, SYLVIA O. HINDS–RADIX, and BETSY BARROS, JJ.
In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Nassau County (Marber, J.), entered January 13, 2014, which denied the petition and dismissed the proceeding.
ORDERED that the order is affirmed, with costs.
Timely service of a notice of claim is a condition precedent to the commencement of a tort action against the respondents ( seeGeneral Municipal Law § 50–e[1][a]; § 50–i[1]; Public Authorities Law § 3415[1] ). The petitioner failed to serve a notice of claim upon the respondents within the requisite 90–day period ( seeGeneral Municipal Law § 50–e[1][a] ). Although late service of a notice of claim by leave of court is permitted under certain circumstances, the petitioner was required to petition for leave to serve a late notice of claim within one year and 90 days of the accrual of the claim ( seeGeneral Municipal Law § 50–e[5]; Pierson v. City of New York, 56 N.Y.2d 950, 954, 453 N.Y.S.2d 615, 439 N.E.2d 331; McShane v. Town of Hempstead, 66 A.D.3d 652, 653, 886 N.Y.S.2d 751; Laroc v. City of New York, 46 A.D.3d 760, 761, 847 N.Y.S.2d 677; Alston v. Aversano, 24 A.D.3d 399, 400, 805 N.Y.S.2d 117). The petitioner's failure to petition for leave to serve a late notice of claim within one year and 90 days of the date that his claim accrued deprived the Supreme Court of authority to permit late service of a notice of claim ( see Pierson v. City of New York, 56 N.Y.2d at 954–956, 453 N.Y.S.2d 615, 439 N.E.2d 331; McShane v. Town of Hempstead, 66 A.D.3d at 653, 886 N.Y.S.2d 751; Small v. New York City Tr. Auth., 14 A.D.3d 690, 691, 789 N.Y.S.2d 229; Santiago v. City of New York, 294 A.D.2d 483, 742 N.Y.S.2d 566).
Moreover, the Supreme Court correctly rejected the petitioner's equitable estoppel claim. Estoppel against a public corporation will lie only when the public corporation's conduct was calculated to, or negligently did, mislead or discourage a party from serving a timely notice of claim and when that conduct was justifiably relied upon by that party ( see Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d 662, 668, 382 N.Y.S.2d 18, 345 N.E.2d 561; Dier v. Suffolk County Water Auth., 84 A.D.3d 861, 862, 923 N.Y.S.2d 847; Dorce v. United Rentals N. Am., Inc., 78 A.D.3d 1110, 1111, 915 N.Y.S.2d 79; Vandermast v. New York City Tr. Auth., 71 A.D.3d 1127, 896 N.Y.S.2d 910). Here, the petitioner failed to demonstrate that the respondents engaged in any misleading conduct that would support a finding of equitable estoppel ( see Dier v. Suffolk County Water Auth., 84 A.D.3d at 862, 923 N.Y.S.2d 847; Dorce v. United Rentals N. Am., Inc., 78 A.D.3d at 1111, 915 N.Y.S.2d 79; Wade v. New York City Health & Hosps. Corp., 16 A.D.3d 677, 793 N.Y.S.2d 68). In addition, there was no evidence that the respondents made any settlement representations upon which the petitioner justifiably relied prior to the expiration of the statutory periods for serving a notice of claim or seeking leave to serve a late notice of claim and, therefore, the petitioner could not have relied on any conduct by the respondents in discouraging him from serving a notice of claim or seeking leave ( see Dorce v. United Rentals N. Am., Inc., 78 A.D.3d at 1111, 915 N.Y.S.2d 79; Mello v. Hicksville Union Free School Dist. No. 17, 51 A.D.2d 580, 581, 378 N.Y.S.2d 753, affd.41 N.Y.2d 927, 394 N.Y.S.2d 637, 363 N.E.2d 361; Pugh v. Board of Educ., Cent. Dist. No. 1–Fayetteville–Manlius School Dist., 38 A.D.2d 619, 620, 326 N.Y.S.2d 300, affd.30 N.Y.2d 968, 335 N.Y.S.2d 830, 287 N.E.2d 621). Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding.