| Attallah v Nassau Univ. Med. Ctr. |
| 2015 NY Slip Op 06587 [131 AD3d 609] |
| August 19, 2015 |
| Appellate Division, Second Department |
[*1]
| 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 ofcounsel), for respondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leaveto 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 anddismissed the proceeding.
Ordered that the order is affirmed, with costs.
Timely service of a notice of claim is a condition precedent to the commencement ofa tort action against the respondents (see General 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 therequisite 90-day period (see General Municipal Law § 50-e [1] [a]).Although late service of a notice of claim by leave of court is permitted under certaincircumstances, the petitioner was required to petition for leave to serve a late notice ofclaim within one year and 90 days of the accrual of the claim (see GeneralMunicipal Law § 50-e [5]; Pierson v City of New York, 56 NY2d950, 954 [1982]; McShane vTown of Hempstead, 66 AD3d 652, 653 [2009]; Laroc v City of New York, 46AD3d 760, 761 [2007]; Alston v Aversano, 24 AD3d 399, 400 [2005]). Thepetitioner's failure to petition for leave to serve a late notice of claim within one year and90 days of the date that his claim accrued deprived the Supreme Court of authority topermit late service of a notice of claim (see Pierson v City of New York, 56NY2d at 954-956; McShane v Town of Hempstead, 66 AD3d at 653; Small v New York City Tr.Auth., 14 AD3d 690, 691 [2005]; Santiago v City of New York, 294AD2d 483 [2002]).
Moreover, the Supreme Court correctly rejected the petitioner's equitable estoppelclaim. Estoppel against a public corporation will lie only when the public corporation'sconduct was calculated to, or negligently did, mislead or discourage a party from servinga 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 NY2d 662, 668[1976]; Dier v Suffolk CountyWater Auth., 84 AD3d 861, 862 [2011]; Dorce v United Rentals N. Am., Inc., 78 AD3d 1110, 1111[2010]; Vandermast v NewYork City Tr. Auth., 71 AD3d 1127 [2010]). Here, the petitioner failed todemonstrate that the respondents engaged in any misleading conduct that would supporta finding of equitable estoppel (see Dier v Suffolk County Water Auth., 84 AD3dat 862; Dorce v United Rentals N. Am., Inc., 78 AD3d at 1111; Wade v New [*2]York City Health & Hosps. Corp., 16 AD3d677 [2005]). In addition, there was no evidence that the respondents made anysettlement representations upon which the petitioner justifiably relied prior to theexpiration of the statutory periods for serving a notice of claim or seeking leave to servea late notice of claim and, therefore, the petitioner could not have relied on any conductby the respondents in discouraging him from serving a notice of claim or seeking leave(see Dorce v United Rentals N. Am., Inc., 78 AD3d at 1111; Mello vHicksville Union Free School Dist. No. 17, 51 AD2d 580, 581 [1976], affd41 NY2d 927 [1977]; Pugh v Board of Educ., Cent. Dist. No.1—Fayetteville-Manlius School Dist., 38 AD2d 619, 620 [1971], affd30 NY2d 968 [1972]). Accordingly, the Supreme Court properly denied the petitionand dismissed the proceeding. Rivera, J.P., Dickerson, Hinds-Radix and Barros, JJ.,concur.