Opinion
2013-03-5
Javier MARTINEZ, et al., Plaintiffs–Appellants, v. The CITY OF NEW YORK, Defendant, The New York City Transit Authority, Defendant–Respondent.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellants. Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for respondent.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellants. Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for respondent.
GONZALEZ, P.J., MAZZARELLI, RENWICK, RICHTER, GISCHE, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered March 22, 2012, which granted defendant New York City Transit Authority's (NYCTA) motion for summary judgmentdismissing the complaint for failure to file a notice of claim and denied plaintiffs' cross motion for leave to serve a late notice of claim, unanimously affirmed, without costs.
In this personal injury action, plaintiffs filed a notice of claim against the City of New York and initially commenced the action against the City. The complaint was subsequently amended to add NYCTA as a defendant, but plaintiffs did not file a notice of claim against NYCTA. After asserting, as an affirmative defense, plaintiffs' failure to timely file the notice, NYCTA moved to dismiss the complaint on this ground. In response, plaintiffs cross-moved for leave to file a late notice of claim nunc pro tunc. The motion court lacked the authority to grant plaintiffs' cross motion since it was made beyond the one–year–and–90–day statute of limitations period ( seeGeneral Municipal Law §§ 50–e[5], 50–i[1][c]; see Bobko v. City of New York, 100 A.D.3d 439, 953 N.Y.S.2d 214 [1st Dept. 2012] ).
Unlike the unusual factual scenarios presented in Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d 662, 382 N.Y.S.2d 18, 345 N.E.2d 561 [1976] and Matter of Hartsdale Fire Dist., 65 A.D.3d 1345, 886 N.Y.S.2d 454 [2d Dept. 2009], lv. denied14 N.Y.3d 701, 2010 WL 456908 [2010], relied on by plaintiffs, NYCTA neither engaged in misleading conduct nor induced plaintiffs' inaction. That NYCTA proceeded with the litigation and failed to serve a bill of particulars with respect to the affirmative defense does not invoke the doctrine of equitable estoppel ( see Rodriguez v. City of New York, 169 A.D.2d 532, 564 N.Y.S.2d 384 [1st Dept. 1991];see also Hamptons Hospital & Medical Center, Inc. v. Moore, 52 N.Y.2d 88, 436 N.Y.S.2d 239, 417 N.E.2d 533 [1981] ).