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Complaint Can Not Be Deemed a Late Notice of Claim/Application to File a Late Notice of Claim Can Not Be Granted After the Statute of Limitations Has Run/City Is Not Required to Plead the Failure to File a Notice of Claim as a Defense/Participation in Discovery Did Not Preclude the City from Moving to Dismiss Based Upon Plaintiff’s Failure to File a Notice of Claim (After the Statute of Limitations Had Run)

The Second Department reversed Supreme Court’s determination that the complaint be deemed a late notice of claim against the city in a slip and fall case.  The court noted that Supreme Court did not have the power to accept the complaint as a late notice of claim, did not have the power to grant an application to file a late notice of claim after the statute of limitations had passed, the city was under no obligation to plead the absence of a notice of claim as a defense, and the city was not precluded from raising the defense by participating in discovery:

Here … the Housing Authority … was “under no obligation to plead, as an affirmative defense, the plaintiff’s failure to comply with the statutory notice of claim requirement” … . “Furthermore . . . participation in pretrial discovery did not preclude [it] from raising the untimeliness of the notice of claim” … . In short, there is no evidence in the record demonstrating that the Housing Authority engaged in any misleading conduct which would support a finding of equitable estoppel … . Furthermore, there is no indication in the record that the plaintiff relied upon any alleged act or omission of the Housing Authority or that such reliance caused the plaintiff to change her position to her detriment or prejudice … . Accordingly, the Supreme Court should have granted the Housing Authority’s motion for summary judgment dismissing the complaint on the ground that the plaintiff failed to serve a timely notice of claim, and denied that branch of the plaintiff’s cross motion which was to deem the complaint to be a late notice of claim and to deem it to have been timely served nunc pro tunc.  Feliciano v NYC Hous Auth, 2014 NY Slip OP 08807, 2nd Dept 12-17-14

 

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