| Khela v City of New York |
| 2012 NY Slip Op 00753 [91 AD3d 912] |
| Jnury 31, 2012 |
| Appellate Division, Second Department |
| Harinder Khela, Respondent, v City of New York et al.,Appellants, and New York State Department of Transportation,Respondent. |
—[*1] Zeccola & Selinger, LLC, Goshen, N.Y. (Mark A. Schwab of counsel), forplaintiff-respondent.
In an action to recover damages for personal injuries, the defendants City of New York andNew York City Department of Transportation appeal from an order of the Supreme Court,Queens County (Satterfield, J.), dated September 30, 2010, which denied their motion to dismissthe amended complaint and all cross claims insofar as asserted against them for failure to serve atimely notice of claim upon the proper entity.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantsCity of New York and New York City Department of Transportation to dismiss the amendedcomplaint and all cross claims insofar as asserted against them is granted.
On July 19, 2008, the plaintiff allegedly was injured when he lost control of his motorcyclewhile operating it on the eastbound entrance ramp of the Jackie Robinson Parkway at itsintersection with Highland Boulevard in Brooklyn. On August 13, 2008, a notice of claim wassent to the legal department of the defendant New York City Department of Transportation, bycertified mail, return receipt requested. In late June 2009, the plaintiff commenced this actionagainst the New York State Department of Transportation and the New York City Department ofTransportation. In August 2009, he amended the summons and complaint to add the City of NewYork as a defendant. The amended complaint alleged the plaintiff's compliance with notice ofclaim requirements. Thereafter, the City of New York and the New York City Department ofTransportation (hereinafter together the defendants) interposed an answer to the amendedcomplaint wherein they specifically denied, inter alia, the allegations in the complaint regardingthe plaintiff's compliance with notice of claim requirements. In March 2010, the defendantsmoved, inter alia, pursuant to CPLR 3211 (a) (7) to dismiss the complaint and all cross claimsinsofar as asserted against them on the ground that the plaintiff failed to serve a timely notice ofclaim upon the proper entity. The plaintiff opposed the motion. In an order dated September 30,2010, the Supreme Court denied the motion. The defendants appeal. We reverse.
Pursuant to General Municipal Law § 50-e (1) (a) and § 50-i (1) (a), service of anotice [*2]of claim within 90 days after accrual of the claim is acondition precedent to commencing an action against the defendants herein (see Maxwell v City of New York, 29AD3d 540, 541 [2006]). The New York City Department of Transportation is a departmentof the City of New York, and is not a separate legal entity (see NY City Charter §396). In order for service of a notice of claim upon the City of New York to be proper, it must bemade upon either the Corporation Counsel, his or her designee, or the Comptroller of the City ofNew York (see Knox v New York CityBur. of Franchises & N.Y. City, 48 AD3d 756, 757 [2008]). Here, the plaintiff failed toserve either the Corporation Counsel, his designee, or the City Comptroller within the statutoryperiod. The plaintiff's improper service upon the New York City Department of Transportation isnot saved by General Municipal Law § 50-e (3) (c), as that provision is "limited in scope todefects in the manner of serving a notice of claim on the correct public entity" (Scantlebury v New York City Health &Hosps. Corp., 4 NY3d 606, 614 [2005]).
The Supreme Court erred in concluding that the defendants were equitably estopped fromasserting the plaintiff's failure to serve a timely notice of claim upon the correct public entity. "'The doctrine of equitable estoppel is to be invoked sparingly and only under exceptionalcircumstances' " (Ceely v New York City Health & Hosps. Corp., 162 AD2d 492, 493[1990], quoting Matter of Gross v New York City Health & Hosps. Corp., 122 AD2d793, 794 [1986]). " '[E]stoppel against a municipal defendant will lie only when the municipaldefendant's conduct was calculated to, or negligently did, mislead or discourage a party fromserving a timely notice of claim and when that conduct was justifiably relied upon by that party' "(Mohl v Town of Riverhead, 62AD3d 969, 970 [2009], quoting Wade v New York City Health & Hosps. Corp., 16 AD3d 677, 677[2005]). Contrary to the plaintiff's contentions, the fact that the defendants may have conductedan examination pursuant to General Municipal Law § 50-h prior to making their motion todismiss does not justify a finding of estoppel (see Dier v Suffolk County Water Auth., 84 AD3d 861, 862 [2011]).Moreover, the defendants were under no duty to raise the failure to serve a timely notice of claimupon the proper entity as an affirmative defense in their answer (see Macias v City of NewYork, 201 AD2d 541 [1994]; Ceely v New York City Health & Hosps. Corp., 162AD2d at 493-494). There is no evidence in the record demonstrating that the defendants engagedin any misleading conduct which would support a finding of equitable estoppel (see Maxwellv City of New York, 29 AD3d at 541; Wade v New York City Health & Hosps.Corp., 16 AD3d at 677; Ceely v New York City Health & Hosps. Corp., 162 AD2dat 493).
Accordingly, the Supreme Court should have granted the defendants' motion to dismiss thecomplaint and all cross claims insofar as asserted against them. Dillon, J.P., Lott, Roman andCohen, JJ., concur. [Prior Case History: 2010 NY Slip Op 33033(U).]