Medical malpractice claims against public hospitals are subject to a requirement of a timely notice of claim, which usually must be served on the public entity within 90 days of accrual of the claim. Where there has been continuous treatment, a notice of claim served within 90 days of the cessation of that treatment is also timely.

Where a notice of claim is not timely filed, the claimant has until the expiration of the applicable statute of limitations to bring a motion under General Municipal Law (GML) §5–e(5) for permission to serve a late notice of claim. Once the statute expires, a court has no discretion to grant such relief. In this circumstance, the only avenue available to a claimant who failed to file a timely notice of claim may be to argue that the municipal defendant should be equitably estopped from seeking dismissal based upon the untimeliness of the notice. The application of that doctrine to notices of claim and municipal hospitals is the subject of this column.