Opinion
13377 Index No. 23673/17E Case No. 2020-03295
03-18-2021
Lucille TIRADO, Plaintiff–Appellant, v. The CITY OF NEW YORK et al., Defendants–Respondents.
Rickner PLLC, New York ( Rob Rickner of counsel), for appellant. James E. Johnson, Corporation Counsel, New York ( Julie Steiner of counsel), for respondents.
Rickner PLLC, New York ( Rob Rickner of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York ( Julie Steiner of counsel), for respondents.
Acosta, P.J., Gische, Webber, González, JJ.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered January 24, 2020, which granted defendants' motion to dismiss the complaint for failure to file a timely notice of claim, unanimously affirmed, without costs.
Plaintiff failed to establish that defendants should be equitably estopped from asserting the defense that she has not complied with the General Municipal Law's notice of claim requirements, because she made no showing that the City engaged in conduct that misled or discouraged her from serving a timely notice of claim or making an application for leave to file a late notice of claim before the statute of limitations expired ( see Martinez v. City of New York, 104 A.D.3d 407, 408, 961 N.Y.S.2d 54 [1st Dept. 2013] ). The record shows that defendants' answer, which was served when plaintiff still had adequate time to seek leave to file a late notice of claim, notified her that there had been a problem with service of the notice of claim because defendants in its answer denied that the notice of claim had been properly served ( see A.A. v. New York City Health & Hosps. Corp. [Jacobi Hosp. Ctr.], 189 A.D.3d 426, 427–428, 137 N.Y.S.3d 309 [1st Dept. 2020] ; Oquendo v. City of New York, 146 A.D.3d 480, 481, 46 N.Y.S.3d 524 [1st Dept. 2017], lv dismissed and denied 35 N.Y.3d 985, 125 N.Y.S.3d 75, 148 N.E.3d 539 [2020] ; Gonzalez v. City of New York, 94 A.D.3d 559, 559, 943 N.Y.S.2d 448 [1st Dept. 2012], lv denied 20 N.Y.3d 859, 2013 WL 537457 [2013] ). That defendants litigated the matter, and did not move for dismissal of the complaint until after the statute of limitations expired does not establish that defendants should be estopped from asserting a statute of limitations defense ( see Williams v. New York City Tr. Auth., 90 A.D.3d 522, 934 N.Y.S.2d 313 [1st Dept. 2011] ; Wollins v. New York City Bd. of Educ., 8 A.D.3d 30, 31, 777 N.Y.S.2d 637 [1st Dept. 2004] ; Rodriguez v. City of New York, 169 A.D.2d 532, 533, 564 N.Y.S.2d 384 [1st Dept. 1991] ).