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

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 *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.