Motion to Dismiss Granted in Bronx County
HPM&B recently obtained an order of dismissal of a case against a major municipal corporation and a neurological surgeon. Plaintiff alleged that defendants improperly performed a posterior thorac-lumbar fusion in 2008, which required plaintiff to undergo a second corrective surgery in 2009. Plaintiff’s counsel filed a Notice of Claim with the municipality’s comptroller’s office; not with the municipal corporation. Plaintiff’s counsel then filed a Complaint in the Supreme Court – Bronx County. After the statute of limitations expired, HPM&B moved to dismiss for failure to serve a proper Notice of Claim.
The Supreme Court – Bronx County (J. McKeon) held, consistent with the Court of Appeals decision in Scantlebury v. N.Y. City Health & Hosps. Corp., 4 N.Y.3d 606, 609 (2005), that plaintiff’s service of the Notice of Claim on the Comptroller was a nullity. The Court observed that since the statute of limitations had expired, the Court was without authority to grant an application to extend the time to serve a Notice of Claim. In addition, the Court rejected plaintiff’s argument that since counsel for defendants received notice of the allegations in the Complaint (as opposed to actual receipt of the Notice of Claim) within 90 days of the accrual of plaintiff’s claim, plaintiff was excused from filing a Notice of Claim with the proper entity. Nor was the Court persuaded by plaintiff’s argument that the doctrine of equitable estoppel should apply because the Comptroller acknowledged receiving plaintiff’s Notice of Claim. Finally, the Court determined that the individual defendant, a neurological surgeon, was the municipal corporation’s employee for the purposes of a Notice of Claim.
The Defendants were represented by HPMB Partner Robert B. Gibson and Associate Jesse D. Capell.