For those of us who represent plaintiff’s in medical malpractice cases it is, of course obvious that the law requires the Notice of Claim to be served on The New York City Health and Hospitals Corporation. It is basic law that service upon the Comptroller of the City of New York is insufficient and will lead to a dismissal of the claim and a potential legal malpractice case. Yet time and again we see cases where the plaintiff’s attorneys served the City of New York resulting in a dismissal of the claim. So was the case in Barnaman v New York City Health and Hospitals Corporation, et al., New York Appellate Division, Second Department, December 6 2011 in which plaintiff’s complaint was dismissed after the statute of limitations had run. The failure of The City of New York to plead an affirmative defense is of no consequence as is their participation in discovery. As The Court stated;
“Contrary to the plaintiff’s contention, the defendants were under no obligation to plead, as an affirmative defense, the plaintiff’s failure to comply with the statutory notice of claim requirement (see Laroc v City of New York, 46 AD3d 760, 761; Maxwell v City of New York, 29 AD3d 540, 541; Lynch v New York City Tr. Auth., 12 AD3d 644, 646). Furthermore, the defendants’ participation in pretrial discovery did not preclude them from raising the untimeliness of the notice of claim (see Laroc v City of New York, 46 AD3d at 761; Wade v New York City Health & Hosps. Corp., 16 AD3d 677; Hall v City of New York, 1 AD3d 254, 256).”
In fact the motion to dismiss can be made at the start of trial and will be granted by the Court.
Frankly, this is inexcusable. It deprived the plaintiff of his day in Court and leaves him with the only recourse of a legal malpractice case.