Opinion
2011-12-27
Sandra BROWNE, appellant, v. NEW YORK CITY TRANSIT AUTHORITY, respondent.
Timothy M. Sullivan, New York, N.Y., for appellant. Wallace D. Gossett, Brooklyn, N.Y. (Lawrence Heisler of counsel), for respondent.
Timothy M. Sullivan, New York, N.Y., for appellant. Wallace D. Gossett, Brooklyn, N.Y. (Lawrence Heisler of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Sherman, J.), dated December 15, 2010, which granted the defendant's motion to dismiss the complaint for failure to serve a timely notice of claim pursuant to General Municipal Law § 50–e(5) and denied her cross motion to deem the notice of claim timely served nunc pro tunc.
ORDERED that the order is affirmed, with costs.
The plaintiff's 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 A.D.3d 414, 415, 810 N.Y.S.2d 664; Alston v. Aversano, 24 A.D.3d 399, 805 N.Y.S.2d 117; Pierre v. City of New York, 22 A.D.3d 733, 804 N.Y.S.2d 365). 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 N.Y.2d 950, 954, 453 N.Y.S.2d 615, 439 N.E.2d 331; Argudo v. New York City Health & Hosps. Corp., 81 A.D.3d 575, 576–577, 916 N.Y.S.2d 143; Ellman v. Village of Rhinebeck, 27 A.D.3d at 415, 810 N.Y.S.2d 664; Friedman v. City of New York, 19 A.D.3d 542, 543, 796 N.Y.S.2d 529; Small v. New York City Tr. Auth., 14 A.D.3d 690, 691, 789 N.Y.S.2d 229).
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 party 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 N.Y.2d 662, 668, 382 N.Y.S.2d 18, 345 N.E.2d 561; Dier v. Suffolk County Water Auth., 84 A.D.3d 861, 862, 923 N.Y.S.2d 847; Dorce v. United Rentals N. Am., Inc., 78 A.D.3d 1110, 1111, 915 N.Y.S.2d 79; Vandermast v. New York City Tr. Auth., 71 A.D.3d 1127, 896 N.Y.S.2d 910; Wade v. New York City Health & Hosps. Corp., 16 A.D.3d 677, 793 N.Y.S.2d 68). 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 A.D.3d at 862, 923 N.Y.S.2d 847; Dorce v. United Rentals N. Am., Inc., 78 A.D.3d at 1111, 915 N.Y.S.2d 79; Vandermast v. New York City Tr. Auth., 71 A.D.3d at 1128, 896 N.Y.S.2d 910). 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 A.D.3d at 1127, 1128, 896 N.Y.S.2d 910; Walter H. Poppe Gen. Contr., Inc. v. Town of Ramapo, 280 A.D.2d 667, 668, 721 N.Y.S.2d 248).