Opinion
November 4, 1985
Appeal from the Supreme Court, Westchester County (Dickinson, J.).
Order reversed, on the law, with costs, motion granted, action dismissed as against appellant, and action as against the remaining defendants severed.
Plaintiff failed to file a verified notice of claim with the Town Clerk in accordance with Town Law § 65 (3) within six months after accrual of its causes of action against the Town of Mamaroneck for breach of contract. Unlike the provisions of General Municipal Law § 50-e (6) granting the court authority to excuse, in a proper case, the lack of verification of a notice of claim against public corporations arising in tort (see, Matter of Moore v New York City Hous. Auth., 35 A.D.2d 553), Town Law § 65 contains no comparable provision. Consequently, the court lacks authority to disregard the lack of verification of a notice of claim against a town arising out of a contractual dispute (see, Braslow v Barnett, 74 Misc.2d 26; cf. Geelan v St. Patrick's Church, 179 Misc. 432; Franza's Universal Scrap Metal v Town of Islip, 89 A.D.2d 843). Accordingly, plaintiff's attorney's unverified letters of August 11 and 31, notifying the Town Administrator and the Town Attorney of plaintiff's claim and intention to commence legal proceedings, do not substantially comply with Town Law § 65 (3).
While it is true that a municipality may be estopped from asserting plaintiff's noncompliance with a notice of claim statute (see, Bender v New York City Health Hosps. Corp., 38 N.Y.2d 662, 668), the Town Attorney's letter of August 16 is no basis upon which to predicate an estoppel as the representation relied upon by plaintiff to delay the commencement of legal proceedings against the town ceased to be operational within a reasonable time prior to the expiration of the applicable six-month period of limitations (see, Simcuski v Saeli, 44 N.Y.2d 442, 449-450; Provosty v Hall Hosp., 91 A.D.2d 658, 659-660, affd 59 N.Y.2d 812; 509 Sixth Ave. Corp. v New York City Tr. Auth., 24 A.D.2d 975; Robinson v City of New York, 24 A.D.2d 260, 261-263; see also, Plaintiff's Diligence as Affecting His Right to Have Defendant Estopped from Pleading the Statute of Limitations, Ann., 44 ALR3d 760, 768-774, §§ 5, 6; cf. Kartiganer Assoc. v Town of Newburgh, 57 A.D.2d 857; Debes v Monroe County Water Auth., 16 A.D.2d 381). O'Connor, J.P., Rubin, Eiber and Kunzeman, JJ., concur.