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Williams v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 15, 2010

JAMES WILLIAMS, PLAINTIFF-APPELLANT,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, New York County (Douglas E. McKeon, J.), entered December 17, 2008, which granted the motion of defendant Health and Hospitals Corporation (HHC) to dismiss the complaint, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Moskowitz, DeGrasse, Abdus-Salaam, Manzanet-Daniels, JJ.

104676/07

Plaintiff, by his own admission, served the New York City Comptroller rather than HHC within one year and 90 days after his treatment at the Bellevue dental clinic. However, service on the Comptroller does not constitute service on HHC (see Scantlebury v New York City Health & Hosps. Corp., 4 NY3d 606 [2005]). Since service of the notice of claim on the proper entity is a condition precedent to suit (see id. at 609) and more than a year and 90 days elapsed after accrual of the claim before HHC was served, the court correctly dismissed the complaint (see Pierson v City of New York, 56 NY2d 950 [1982]).

HHC is not equitably estopped from seeking dismissal of the complaint.

Plaintiff was treated at Woodhull more than a year after his treatment at Bellevue. The fact that Woodhull and Bellevue are both HHC entities does not automatically invoke the continuous treatment doctrine (see Allende v New York City Health & Hosps. Corp., 90 NY2d 333, 340 [1997]). In any event, plaintiff admitted, in a complaint letter to Woodhull, that the treatment he received there was unrelated to the treatment he had received at Bellevue.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100615

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