Appellate Division of the Supreme Court of New York, 2011

Browne v. New York City Transit Authority

Appellate Division of the Supreme Court of New York · Decided December 27, 2011

90 A.D.3d 965; 934 N.Y.2d 821

Cases that cite this one

8 later published cases cite this decision.

J.H. v. New York City Health & Hosps. Corp. (Appellate Division of the Supreme Court of New York 2019)
Matter of Lubin v. City of New York (Appellate Division of the Supreme Court of New York 2017)
Robinson v. Board of Education (Appellate Division of the Supreme Court of New York 2013)
Robinson v. Board of Education (Appellate Division of the Supreme Court of New York 2013)
Katsiouras v. City of New York (Appellate Division of the Supreme Court of New York 2013)
Katsiouras v. City of New York (Appellate Division of the Supreme Court of New York 2013)
Decoteau v. City of New York (Appellate Division of the Supreme Court of New York 2012)
Decoteau v. City of New York (Appellate Division of the Supreme Court of New York 2012)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

The plaintiffs late service of a notice of claim upon the defendant was a nullity, as it was made without leave of the court (see Ellman v Village of Rhinebeck, 27 AD3d 414, 415 [2006]; Alston v Aversano, 24 AD3d 399 [2005]; Pierre v City of New York, 22 AD3d 733 [2005]). Furthermore, since the plaintiff cross-moved to deem the notice of claim timely served nunc pro tunc after the one-year-and-90-day statute of limitations had expired, the Supreme Court did not have the authority to grant such relief (see General Municipal Law § 50-e [5]; § 50-i [1]; Pierson v City of New York, 56 NY2d 950, 954 [1982]; Argudo v New York City Health & Hosps. Corp., 81 AD3d 575, 576-577 [2011]; Ellman v Village of Rhinebeck, 27 AD3d at 415; Friedman v City of New York, 19 AD3d 542, 543 [2005]; Small v New York City Tr. Auth., 14 AD3d 690, 691 [2005]).

The plaintiff contends that the defendant was estopped from moving to dismiss the complaint based on her failure to serve a timely notice of claim. Equitable estoppel against a public corporation will lie only when the conduct of the public corporation was calculated to or negligently did mislead or discourage a *966party from serving a timely notice of claim, and when that conduct was justifiably relied upon by that party (see Bender v New York City Health & Hosps. Corp., 38 NY2d 662, 668 [1976]; Dier v Suffolk County Water Auth., 84 AD3d 861, 862 [2011]; Dorce v United Rentals N. Am,, Inc., 78 AD3d 1110, 1111 [2010]; Vandermast v New York City Tr. Auth., 71 AD3d 1127 [2010]; Wade v New York City Health & Hosps. Corp., 16 AD3d 677 [2005]). Here, the plaintiff failed to demonstrate that the defendant engaged in any misleading conduct that would support a finding of equitable estoppel (see Dier v Suffolk County Water Auth., 84 AD3d at 862; Dorce v United Rentals N. Am., Inc., 78 AD3d at 1111; Vandermast v New York City Tr. Auth., 71 AD3d at 1128). The letter by the defendant informing the plaintiff of a defect in the form of the notice of claim did not constitute conduct that would warrant an estoppel (see Vandermast v New York City Tr. Auth., 71 AD3d at 1127, 1128; Walter H. Poppe Gen. Contr. v Town of Ramapo, 280 AD2d 667, 668 [2001]). Rivera, J.R, Florio, Eng, Hall and Cohen, JJ., concur.

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