Browne v. New York City Transit Authority , 934 N.Y.2d 821 ( 2011 )

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 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 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.