bringing the action (CPLR 3102, subd [c]). At that time defendants urged that the action was without merit because plaintiffs had failed to serve a timely notice of claim (General Municipal Law, § 50-e) and failed to commence the action within one year and ninety days after the happening of the event upon which the claims were based (General Municipal Law, §
50-i). Special Term granted disclosure, noting in its decision on the disclosure motion that at the time of the injury the infant was a ward either of Chautauqua County or Erie County, or both, and that therefore the notice provisions of the General Municipal Law did not apply (see General Municipal Law, §
50-e, subd 8;
Gibbs v City of New York, 23 AD2d 665 ). That order was not appealed. A complaint was subsequently served and defendants answered, alleging the affirmative defenses of sections
50-e and
50-i of the General Municipal Law. Thereafter, plaintiffs and defendants served cross motions for summary judgment. The court denied defendants’ motion, holding that they were collaterally estopped from raising the issue because of the prior disclosure decision. It granted plaintiffs’ motion as to liability and directed a trial solely on the issue of damages. The General’-Municipal Law (§
50-d, subd 2) provides that no action may be maintained against a municipality for the malpractice of its physician unless a notice of claim shall be filed as required by section 50-e and an action is commenced within the time period provided by section
50-i. The notice of claim is a condition precedent to commencement of the cause of action (General Municipal Law, §
50-e) and a complaint which fails to plead compliance with the statutory time requirements of notice and for commencing the cause of action is legally defective and is subject to dismissal (23 Carmody-Wait 2d, NY Prac, §
144:111). The plaintiffs do not contend that timely notices were served on defendants and thus, unless the infant was exempt from doing so because he was a ward of Erie County at the time of this injury (see Social Services Law, § 384), the complaint must be dismissed. We disagree with Special Term’s finding that defendants are collaterally estopped from raising the question at this time because of its prior order in the disclosure motion (see
Schwartz v Public Administrator of County of Bronx, 24 NY2d 65 , 71). Since the court and the plaintiff proceeded .upon the erroneous assumption that they were estopped and did not directly address the question upon the return of the summary judgment motions, we remit this matter for a factual hearing on the single issue of whether the infant was a ward of Erie County at the time of his injury (see CPLR 3212, subd [c]). If he was, the summary judgment motions of both parties should be denied as to the infant and his cause of action should proceed to trial on liability and damages. The Statute of Limitations was tolled during his infancy (see
Sadler v Horvath, 44 AD2d 905 ;
Corbett v Fayetteville-Manlius Cent. School Dist., 34 AD2d 379 ;
Kratz v Dussault, 33 AD2d 826 ). If he was not a ward of Erie County, the defendants’ motion for summary judgment should be granted. (See
Matter of Martin v School Bd., 301 NY 233 , 238.) The father’s cause of action is barred by the Statute of Limitations (see General Municipal Law, §
50-i) and Special Term’s order as to him is reversed and defendants’ motion for summary judgment dismissing the derivative cause of action is granted. (Appeal from order of Erie Supreme Court—summary judgment—negligence.) Present—Moule, J. P., Cardamone, Simons, Dillon and Goldman, JJ.