Distel v. County of Ulster , 484 N.Y.S.2d 715 ( 1985 )

Mahoney, P. J., and Main, J.,

concur in the following memo-

randum by Mahoney, P. J. Mahoney, P. J. (concurring). In our view, the facts of this case may well support an equitable estoppel against defendant (see Cassidy v County of Nassau, 84 AD2d 742). However, the complaint was correctly dismissed since plaintiffs did not properly raise this issue. An equitable estoppel may be asserted either by serving an amended complaint setting forth facts sufficient to excuse the late filing of the notice of claim or by moving for permission to file a notice of claim nunc pro tunc, though the Court of Appeals has suggested that the latter procedure is more appropriate (Bender v New York City Health & Hosps. Corp., 38 NY2d 662, 668). In the instant case, defendant promptly raised the time limitations set forth in sections 50-e and 50-i of the General Municipal Law in its answer served in January of 1983. However, plaintiffs neither served an amended complaint nor moved for permission to file a notice of claim nunc pro tunc. The first time plaintiffs raised the issue of equitable estoppel was in opposition to defendant’s motion for summary judgment, which was made in November of 1983. Thus, plaintiffs should be deemed to have waived this issue.