| Feliciano v New York City Hous. Auth. |
| 2014 NY Slip Op 08807 [123 AD3d 876] |
| December 17, 2014 |
| Appellate Division, Second Department |
[*1]
| Charlene Feliciano, Respondent, v New YorkCity Housing Authority, Appellant. |
Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (John Sandercock andSteven B. Prystowsky of counsel), for appellant.
Reingold & Tucker, Brooklyn, N.Y. (Abraham Reingold of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals, aslimited by its brief, from so much of an order of the Supreme Court, Kings County(Lewis, J.), dated November 8, 2013, as denied its motion for summary judgmentdismissing the complaint on the ground that the plaintiff failed to serve a timely notice ofclaim, and granted that branch of the plaintiff's cross motion which was to deem thecomplaint to be a late notice of claim and to deem it to have been timely served nunc protunc.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,the defendant's motion for summary judgment dismissing the complaint on the groundthat the plaintiff failed to serve a timely notice of claim is granted, and that branch of theplaintiff's cross motion which was to deem the complaint to be a late notice of claim andto deem it to have been timely served nunc pro tunc is denied.
The plaintiff commenced this action to recover damages for personal injuriesallegedly sustained when she fell on stairs located in a building owned by the defendantNew York City Housing Authority (hereinafter the Housing Authority). The HousingAuthority moved for summary judgment dismissing the complaint on the ground that theplaintiff failed to timely serve a notice of claim upon it. The plaintiff opposed the motion,arguing that the Housing Authority should be estopped from moving for summaryjudgment on this ground as it had intentionally waited to make the motion until after thestatute of limitations had passed. The plaintiff also cross-moved, inter alia, to deem thecomplaint to be a late notice of claim and to deem it to have been timely served nunc protunc. The Supreme Court denied the Housing Authority's motion for summary judgmentand granted that branch of the plaintiff's cross motion which was to deem the complaintto be a late notice of claim and to deem it to have been timely served nunc pro tunc.
Service of a notice of claim within 90 days after accrual of the claim is a conditionprecedent to commencing an action against the Housing Authority (see GeneralMunicipal Law §§ 50-e [5]; 50-i [1]; Matter of Alvarez v New York CityHous. Auth., 97 AD3d 668, 668 [2012]). Furthermore, a petition for leave toserve a late notice of claim, or to deem a late notice of claim timely served [*2]nunc pro tunc, "may not be made more than one year and90 days after the happening of the event upon which the claim is based, unless the statutehas been tolled" (Matter of Alvarez v New York City Hous. Auth., 97 AD3d at668; see Pierson v City of New York, 56 NY2d 950, 954-955 [1982]).
Here, that branch of the plaintiff's cross motion which was to deem the complaint tobe a late notice of claim and to deem it to have been timely served nunc pro tunc shouldhave been denied as a matter of law. The Supreme Court had no authority to deem thecomplaint to be a late notice of claim (see Davidson v Bronx Mun. Hosp., 64NY2d 59, 61 [1984]; see also Vitale v Hagan, 71 NY2d 955 [1988]). Even if theplaintiff had attempted the proper procedure and sought leave to serve a late notice ofclaim, the Supreme Court would have had no authority to grant leave to serve a latenotice of claim as the application would have been made after the expiration of thestatute of limitations (see YoungSoo Chi v Castelli, 112 AD3d 816, 816-817 [2013]; Matter of O'Neal v New York CityHous. Auth., 6 AD3d 445, 445 [2004]).
The Supreme Court also erred in denying the Housing Authority's motion forsummary judgment dismissing the complaint on the ground that the plaintiff failed toserve a timely notice of claim. " 'The doctrine of equitable estoppel is to beinvoked sparingly and only under exceptional circumstances' " (Ceely v NewYork City Health & Hosps. Corp., 162 AD2d 492, 493 [1990], quotingMatter of Gross v New York City Health & Hosps. Corp., 122 AD2d 793,794 [1986]; see Khela v City ofNew York, 91 AD3d 912, 914 [2012]). "[W]here a governmental subdivisionacts or comports itself wrongfully or negligently, inducing reliance by a party who isentitled to rely and who changes his [or her] position to his [or her] detriment orprejudice, that subdivision should be estopped from asserting a right or defense which itotherwise could have raised" (Bender v New York City Health & Hosps.Corp., 38 NY2d 662, 668 [1976]). "The equitable bar to a defense may arise byvirtue of positive acts, or omissions where there was a duty to act" (id.).
Here, as the Housing Authority correctly contends, it was "under no obligation toplead, as an affirmative defense, the plaintiff's failure to comply with the statutory noticeof claim requirement" (Barnaman v New York City Health & Hosps. Corp., 90AD3d 588, 589 [2011]; seeLaroc v City of New York, 46 AD3d 760, 761 [2007]). "Furthermore. . . participation in pretrial discovery did not preclude [it] from raising theuntimeliness of the notice of claim" (Barnaman v New York City Health &Hosps. Corp., 90 AD3d at 589-590; see Laroc v City of New York, 46 AD3dat 761). In short, there is no evidence in the record demonstrating that the HousingAuthority engaged in any misleading conduct which would support a finding of equitableestoppel (see Khela v City of New York, 91 AD3d at 914; Laroc v City ofNew York, 46 AD3d at 761; Wade v New York City Health & Hosps. Corp., 16 AD3d677, 677 [2005]). Furthermore, there is no indication in the record that the plaintiffrelied upon any alleged act or omission of the Housing Authority or that such reliancecaused the plaintiff to change her position to her detriment or prejudice (see Bender vNew York City Health & Hosps. Corp., 38 NY2d at 668). Accordingly, theSupreme Court should have granted the Housing Authority's motion for summaryjudgment dismissing the complaint on the ground that the plaintiff failed to serve atimely notice of claim, and denied that branch of the plaintiff's cross motion which was todeem the complaint to be a late notice of claim and to deem it to have been timely servednunc pro tunc. Chambers, J.P., Miller, Duffy and LaSalle, JJ., concur.