| Agress v Clarkstown Cent. School Dist. |
| 2010 NY Slip Op 00455 [69 AD3d 769] |
| January 19, 2010 |
| Appellate Division, Second Department |
| Jo Ann Agress, Respondent, v Clarkstown Central SchoolDistrict, Appellant. |
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In an action, inter alia, to recover damages for negligent misrepresentation, the defendantappeals from so much of an order of the Supreme Court, Rockland County (Nelson, J.), datedJanuary 6, 2009, as denied that branch of its motion which was for summary judgmentdismissing the third cause of action based upon promissory estoppel.
Ordered that the order is affirmed insofar as appealed from, with costs.
From in or about April 1989 until January 2001, the plaintiff was employed by thedefendant, Clarkstown Central School District (hereinafter the School District), as a schoolpsychologist. The plaintiff contends that when she tendered her resignation in late 2000, she wastold by one of the School District's employees working in its benefits office that since she was a"vested" employee at the time of her resignation, she was entitled to a continuation of her healthbenefits as long as she paid the full premiums until she attained 55 years of age. Once shereached the age of 55, the School District would then be responsible for payment of 50% of thepremiums. According to the plaintiff, pursuant to the aforesaid arrangement, she received healthinsurance coverage through the School District for approximately six years. In or around lateJune 2006, the plaintiff advised the School District that she would be turning 55 in July and that,as a result, it should start to pay 50% of her health insurance premiums. The School Districtresponded that an error had occurred and that the plaintiff had not been entitled to thecontinuation of her health benefits after she resigned. The School District terminated theplaintiff's health benefits in or around October 2006, compelling her to secure alternate coveragefor herself and her family at a much higher cost.
In or about April 2007 the plaintiff commenced this action, inter alia, to recover damages fornegligent misrepresentation. The School District moved for summary judgment dismissing thecomplaint. The Supreme Court granted those branches of the motion which were for summaryjudgment dismissing the negligent misrepresentation and implied contract causes of action. TheSupreme Court denied that branch of the motion which was for summary judgment dismissing[*2]the third cause of action based upon promissory estoppel,finding that triable issues of fact existed with respect to the issue of detrimental reliance. TheSchool District now appeals from so much of the order as denied that branch of its motion. Weaffirm.
"The elements of a cause of action based upon promissory estoppel are a clear andunambiguous promise, reasonable and foreseeable reliance by the party to whom the promise ismade, and an injury sustained in reliance on that promise" (Williams v Eason, 49 AD3d 866, 868 [2008]). As a general rule,estoppel may not be invoked against a governmental body to prevent it from performing itsstatutory duty or from rectifying an administrative error (see Matter of 333 E. 89 Realty vNew York City Water Bd., 272 AD2d 549, 550 [2000]). An exception to the general rule is"where a governmental subdivision acts or comports itself wrongfully or negligently, inducingreliance by a party who is entitled to rely and who changes his position to his detriment orprejudice" (Bender v New York City Health & Hosps. Corp., 38 NY2d 662, 668 [1976];see LoCiciro v Metropolitan Transp. Auth., 288 AD2d 353, 354 [2001]). This Court hasinvoked the doctrine of estoppel against governmental entities where its "misleadingnonfeasance would otherwise result in a manifest injustice" (Landmark Colony at Oyster Bayv Board of Supervisors of County of Nassau, 113 AD2d 741, 744 [1985]; see Allen vBoard of Educ. of Union Free School Dist. No. 20, 168 AD2d 403, 404 [1990]), such aswhere the plaintiff has been the victim of bureaucratic confusion and deficiencies (seeLandmark Colony at Oyster Bay v Board of Supervisors of County of Nassau, 113 AD2d at743-744).
Here, there was evidence that while the representations of the defendant's employee did notinduce the plaintiff to resign, once she did resign, she made certain employment and insurancedecisions based upon the earlier representations that she was entitled to receive continuing healthinsurance coverage from the School District. Thus, triable issues of fact exist, inter alia, as towhether those representations were made, whether it was reasonable for the plaintiff to rely uponthem if they were made, whether the School District explicitly or implicitly authorized them, andwhether the defendant, by affording health insurance coverage to the plaintiff for several yearsafter she resigned, ratified the alleged earlier representations, even if they had been made inerror. Accordingly, the Supreme Court properly denied that branch of the School District'smotion which was for summary judgment dismissing the third cause of action, based uponpromissory estoppel (see Matter of Branca v Board of Educ., Sachem Cent. School Dist. atHolbrook, 239 AD2d 494, 495-496 [1997]; Matter of Augello v Board of Educ. ofLynbrook Union Free School Dist., 168 AD2d 445 [1990]; Allen v Board of Educ. ofUnion Free School Dist. No. 20, 168 AD2d at 404).
We decline to consider the School District's contention, raised for the first time in its replybrief, that the plaintiff failed to serve a notice of claim pursuant to Education Law § 3813(1). While the School District pleaded the failure to serve a notice of claim as an affirmativedefense in its answer, thus not waiving the defense (cf. Flanagan v Board of Educ., CommackUnion Free School Dist., 47 NY2d 613, 617 [1979]), and may raise the issue at any timebefore trial (see Kim L. v Port JervisCity School Dist., 61 AD3d 825, 827 [2009]), the issue is not properly before this Courtsince it was not raised before the Supreme Court. In light of the fact that the plaintiff has not hadan opportunity to respond to the contention, since it appeared only in the School District's replybrief, we do not reach it (cf. Williams vNaylor, 64 AD3d 588, 588-589 [2009]; Matter of State Farm Mut. Auto. Ins. Co. v Olsen, 22 AD3d 673,674 [2005]).
The School District's remaining contentions are without merit. Rivera, J.P., Miller, Leventhaland Chambers, JJ., concur.