| Vandermast v New York City Tr. Auth. |
| 2010 NY Slip Op 02776 [71 AD3d 1127] |
| March 30, 2010 |
| Appellate Division, Second Department |
| Leia Vandermast, Appellant, v New York City TransitAuthority et al., Respondent. |
—[*1] 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 ofthe Supreme Court, Kings County (Miller, J.), dated May 21, 2009, which granted that branch ofthe defendants' cross motion which was to dismiss the complaint for failure to serve a timelynotice of claim, and denied, as academic, her motion, in effect, pursuant to CPLR 3126 to strikethe defendants' answer or, in the alternative, to compel certain discovery.
Ordered that the order is affirmed, with costs.
The Supreme Court properly rejected the plaintiff's equitable estoppel claim. Estoppelagainst a municipal defendant will lie only when the municipal defendant's conduct wascalculated to, or negligently did, mislead or discourage a party from serving a timely notice ofclaim and when that conduct was justifiably relied upon by that party (see Bender v NewYork City Health & Hosps. Corp., 38 NY2d 662, 668 [1976]; Wade v New York CityHealth & Hosps. Corp., 16 AD3d 677 [2005]). The plaintiff failed to demonstrate that thedefendants engaged in any misleading conduct that would support a finding of estoppel.
Accordingly, the Supreme Court properly granted that branch of the defendants' crossmotion which was to dismiss the complaint, and properly denied, as academic, the plaintiff'smotion, in effect, pursuant to CPLR 3126 to strike the defendants' answer or, in the alternative,to compel certain discovery (cf. Commack Roller Rink v Commack Arena Mktg., 154AD2d 327, 329 [1989]). Fisher, J.P., Covello, Lott and Sgroi, JJ., concur. [Prior CaseHistory: 23 Misc 3d 1129(A), 2009 NY Slip Op 51004(U).]