Drysdale v. City of New York

Appellate Division of the Supreme Court of New York

Drysdale v. City of New York

182 A.D.2d 566, 582 N.Y.S.2d 716, 1992 N.Y. App. Div. LEXIS 6361

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

DecidedApril 28, 1992

StatusPublished

Cited by1 cases

This text of 182 A.D.2d 566 (Drysdale 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.

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Drysdale v. City of New York, 182 A.D.2d 566, 582 N.Y.S.2d 716, 1992 N.Y. App. Div. LEXIS 6361 (N.Y. Ct. App. 1992).

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Opinion

Order, denominated a judgment, Supreme Court, New York County (Martin Schoenfeld, J.), entered January 2, 1991, which, insofar as appealed from deemed plaintiff’s notice of claim and supplemental notice of claim to be timely served, and dismissed defendants’ third affirmative defense of the Statute of Limitations, unanimously affirmed, without costs.

We agree with the IAS court that defendants should be estopped from asserting the Statute of Limitations or the untimeliness of the March 12, 1990 supplemental notice of claim for wrongful death and conscious pain and suffering based upon medical malpractice because of their active concealment of plaintiff’s mother’s death, and their failure to reasonably and diligently inquire or ascertain the whereabouts of the decedent’s relatives prior to releasing the body for a funeral to the city mortuary, although a next of kin was listed (Simcuski v Saeli, 44 NY2d 442, 448; Cassidy v County of Nassau, 84 AD2d 742).

[567]*567Nor did the IAS court err in granting plaintiff leave to serve an amended complaint setting forth more fully her allegations of fraud and concealment, where the record reveals that defendants clearly had actual knowledge of the facts underlying those claims and were therefore not substantially prejudiced by the delay in serving the notice of claim (Dodd v Warren, 110 AD2d 807; General Municipal Law § 50-e [6]). We have reviewed the defendants’ remaining claims and find them to be without merit. Concur — Murphy, P. J., Ellerin, Wallach, Asch and Rubin, JJ.

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Order, denominated a judgment, Supreme Court, New York County (Martin Schoenfeld, J.), entered January 2, 1991, which, insofar as appealed from deemed plaintiff’s notice of claim and supplemental notice of claim to be timely served, and dismissed defendants’ third affirmative defense of the Statute of Limitations, unanimously affirmed, without costs.

We agree with the IAS court that defendants should be estopped from asserting the Statute of Limitations or the untimeliness of the March 12, 1990 supplemental notice of claim for wrongful death and conscious pain and suffering based upon medical malpractice because of their active concealment of plaintiff’s mother’s death, and their failure to reasonably and diligently inquire or ascertain the whereabouts of the decedent’s relatives prior to releasing the body for a funeral to the city mortuary, although a next of kin was listed (Simcuski v Saeli, 44 NY2d 442, 448; Cassidy v County of Nassau, 84 AD2d 742).

[567]*567Nor did the IAS court err in granting plaintiff leave to serve an amended complaint setting forth more fully her allegations of fraud and concealment, where the record reveals that defendants clearly had actual knowledge of the facts underlying those claims and were therefore not substantially prejudiced by the delay in serving the notice of claim (Dodd v Warren, 110 AD2d 807; General Municipal Law § 50-e [6]). We have reviewed the defendants’ remaining claims and find them to be without merit. Concur — Murphy, P. J., Ellerin, Wallach, Asch and Rubin, JJ.

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Bluebook (online)

182 A.D.2d 566, 582 N.Y.S.2d 716, 1992 N.Y. App. Div. LEXIS 6361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drysdale-v-city-of-new-york-nyappdiv-1992.

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