Plummer v. New York City Health & Hospitals Corp. , 729 N.Y.S.2d 70 ( 2001 )

—Order, Supreme Court, Bronx County (Douglas Mc-Keon, J.), entered March 28, 2000, which, to the extent appealed from, denied defendant’s motion for summary judgment on the ground of plaintiffs’ failure to timely file a notice of claim pursuant to General Municipal Law § 50-e, affirmed, without costs.

While we affirm the result, we differ with the motion court’s reasoning. There is no evidence of defendant’s wrongfully or negligently inducing reliance by plaintiffs to their detriment, as required for an estoppel (see, Cabreaja v New York City Health & Hosps. Corp., 201 AD2d 319, 321). Brown v City of New York (264 AD2d 493), relied upon by the motion court, is clearly distinguishable on its facts. Also, in finding the question of whether there was continuous treatment irrelevant, the court’s reliance upon Matter of Janvier v New York City Health & Hosps. Corp. (162 AD2d 342, lv denied 76 NY2d 711) was misplaced inasmuch as, unlike that case, plaintiffs notice of claim was filed within 10 years of his date of birth, when his cause of action for medical malpractice accrued (see, CPLR 208). Morever, in Janvier, the infant visited the hospital where she was born only for general checkups, immunization and other treatment related to the Erb’s Palsy, whereas here questions of fact were presented by the opposing affidavits of plaintiffs mother and doctors as to whether the infant’s visits to North Central Bronx Hospital during the period from his birth on May 21, 1985 to October 18, 1990, when plaintiffs notice of claim was filed, constituted continuous treatment for the Erb’s Palsy and other injuries suffered as a result of defendant’s alleged malpractice. Concur — Mazzarelli, Andrias and Lerner, JJ.