Bushwick Housing Systems, Inc. v. City of New York

Appellate Division of the Supreme Court of New York

Bushwick Housing Systems, Inc. v. City of New York

182 A.D.2d 531, 583 N.Y.S.2d 916, 1992 N.Y. App. Div. LEXIS 6201

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 21, 1992

StatusPublished

This text of 182 A.D.2d 531 (Bushwick Housing Systems, Inc. v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bushwick Housing Systems, Inc. v. City of New York, 182 A.D.2d 531, 583 N.Y.S.2d 916, 1992 N.Y. App. Div. LEXIS 6201 (N.Y. Ct. App. 1992).

Pincite

Opinion

Order, Supreme Court, New York County (Eugene L. Nardelli, J.), entered March 5, 1991, which inter alia, granted defendant’s motion to dismiss the complaint for failure to serve a notice of claim, unanimously affirmed, without costs.

The IAS court’s finding that plaintiff did not serve a notice of claim is based upon its evaluation of the hearing testimony and should not be disturbed. "On a bench trial, the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on [532]*532considerations relating to the credibility of witnesses” (Claridge Gardens v Menotti, 160 AD2d 544, 544-545). Nor is there merit to plaintiff’s other argument that defendant’s acknowledgment of receipt of the summons and complaint estops it from asserting lack of notice. It is well settled that service of the summons and complaint does not constitute a valid notice of claim (Davidson v Bronx Mun. Hosp., 64 NY2d 59), and plaintiffs reliance on Bender v New York City Health & Hosps. Corp. (38 NY2d 662) for its estoppel argument cannot avail absent a showing of any wrongful or negligent acts by defendant that lulled plaintiff into believing that it could proceed without a notice of claim. Concur — Sullivan, J. P., Ellerin, Wallach and Rubin, JJ.

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Order, Supreme Court, New York County (Eugene L. Nardelli, J.), entered March 5, 1991, which inter alia, granted defendant’s motion to dismiss the complaint for failure to serve a notice of claim, unanimously affirmed, without costs.

The IAS court’s finding that plaintiff did not serve a notice of claim is based upon its evaluation of the hearing testimony and should not be disturbed. "On a bench trial, the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on [532]*532considerations relating to the credibility of witnesses” (Claridge Gardens v Menotti, 160 AD2d 544, 544-545). Nor is there merit to plaintiff’s other argument that defendant’s acknowledgment of receipt of the summons and complaint estops it from asserting lack of notice. It is well settled that service of the summons and complaint does not constitute a valid notice of claim (Davidson v Bronx Mun. Hosp., 64 NY2d 59), and plaintiffs reliance on Bender v New York City Health & Hosps. Corp. (38 NY2d 662) for its estoppel argument cannot avail absent a showing of any wrongful or negligent acts by defendant that lulled plaintiff into believing that it could proceed without a notice of claim. Concur — Sullivan, J. P., Ellerin, Wallach and Rubin, JJ.

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Bluebook (online)

182 A.D.2d 531, 583 N.Y.S.2d 916, 1992 N.Y. App. Div. LEXIS 6201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bushwick-housing-systems-inc-v-city-of-new-york-nyappdiv-1992.

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