| Troeller v Klein |
| 2011 NY Slip Op 01874 [82 AD3d 513] |
| March 15, 2011 |
| Appellate Division, First Department |
| Robert J. Troeller, Respondent, v Joel I. Klein,Appellant. |
—[*1] Spivak Lipton LLP, New York (Neil D. Lipton of counsel), for respondent.
Order (denominated order and judgment), Supreme Court, New York County (Marcy S.Friedman, J.), entered April 20, 2009, which denied respondent's cross motion to dismiss thepetition brought pursuant to Education Law § 3813 (2-a) to deem the notice of claimtimely, unanimously reversed, on the law, without costs, the cross motion granted, and theproceeding dismissed.
Petitioner's cause of action for breach of contract accrued on March 22, 2007, when he knewthat at least some members of his union had not been paid the amount allegedly due under theJanuary 2007 stipulation of settlement between the union and the Department of Education(DOE), and his lawyer wrote to DOE's lawyer that the parties' agreement was "quite different"from the way DOE was interpreting it (see Pope v Hempstead Union Free School Dist. Bd. ofEduc., 194 AD2d 654 [1993], lv dismissed 82 NY2d 846 [1993]). Because thepetition to deem the notice timely was brought more than one year after March 22, 2007, thecourt lacked the authority to entertain it (see Education Law § 3813 [2-a], [2-b]; Consolidated Constr. Group, LLC vBethpage Union Free School Dist., 39 AD3d 792, 794-795 [2007], lv dismissed9 NY3d 980 [2007]).
Petitioner's argument that respondent should be estopped from asserting a late notice of claimdefense because respondent did not respond to petitioner's requests for information until May 10,2007 is unavailing. "An estoppel cannot be founded upon defendant's failure to communicatewith plaintiff in response to . . . bills" (Amsterdam Wrecking & Salvage Co. vGreater Amsterdam School Dist., 83 AD2d 654, 655 [1981], affd 56 NY2d 828[1982]). A fortiori, an estoppel cannot be founded on respondent's delay in responding topetitioner's requests for information.
Petitioner's contention that CPLR 204 (b) tolled the statute of limitations because his unionand DOE made arguments to an arbitrator about the meaning of the stipulation is also unavailing.To toll the statute of limitations, the arbitration must have been "instituted by the parties in orderto resolve the present controversy" (Matter of Majka v Utica City School Dist., 247AD2d 845, 846 [1998]; see alsoProvenzano v Ioffe, 12 AD3d 353 [2004], lv denied 5 NY3d 701 [2005]). Thearbitration between the union and DOE concerned the Custodian Engineers [*2]who were excluded from the stipulation of settlement. The presentcontroversy concerns the Custodian Engineers who were covered by the stipulation.Concur—Andrias, J.P., Friedman, McGuire, Acosta and DeGrasse, JJ.[Prior Case History: 2009 NY Slip Op 30832(U).]