Majority
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Nassau County (Marber, J.), entered January 13, 2014, which denied the petition and dismissed the proceeding.
Ordered that the order is affirmed, with costs.
Timely service of a notice of claim is a condition precedent to the commencement of a tort action against the respondents (see General Municipal Law §§ 50-e [1] [a]; 50-i [1]; Public Authorities Law § 3415 [1]). The petitioner failed to serve a notice of claim upon the respondents within the requisite 90-day period (see General Municipal Law § 50-e [1] [a]). Although late service of a notice of claim by leave of court is permitted under certain circumstances, the petitioner was required to petition for leave to serve a late notice of claim within one year and 90 days of the accrual of the claim (see General Municipal Law § 50-e [5]; Pierson v City of New York, 56 NY2d 950 , 954 [1982]; McShane v Town of Hempstead, 66 AD3d 652 , 653 [2009]; Laroc v City of New York, 46 AD3d 760 , 761 [2007]; Alston v Aversano, 24 AD3d 399 , 400 [2005]). The petitioner’s failure to petition for leave to serve a late notice of claim within one year and 90 days of the date that his claim accrued deprived the Supreme Court of authority to permit late service of a notice of claim (see Pierson v City of New York, 56 NY2d at 954-956 ; McShane v Town of Hempstead, 66 AD3d at 653 ; Small v New York City Tr. Auth., 14 AD3d 690 , 691 [2005]; Santiago v City of New York, 294 AD2d 483 [2002]).
Moreover, the Supreme Court correctly rejected the petitioner’s equitable estoppel claim. Estoppel against a public corporation will lie only when the public corporation’s conduct was calculated to, or negligently did, mislead or discourage a party from serving a timely notice of claim and when that conduct was justifiably relied upon by that party (see Bender v New York City Health & Hosps. Corp., 38 NY2d 662 , 668 [1976]; Dier v Suffolk County Water Auth., 84 AD3d 861 , 862 [2011]; Dorce v United Rentals N. Am., Inc., 78 AD3d 1110 , 1111 [2010]; Vandermast v New York City Tr. Auth., 71 AD3d 1127 [2010]). Here, the petitioner failed to demonstrate that the respondents engaged in any misleading conduct that would support a finding of equitable estoppel (see Dier v Suffolk County Water Auth.,
Rivera, J.R, Dickerson, Hinds-Radix and Barros, JJ., concur.
Cases cited
- Pierson v. City of New York 56 NY2d 950 at 954 p. 609
- Laroc v. City of New York 46 AD3d 760 at 761 p. 609
- Alston v. Aversano 24 AD3d 399 at 400 p. 609
- Small v. New York City Transit Authority 14 AD3d 690 at 691 p. 609
- Santiago v. City of New York 294 AD2d 483 p. 609
- Bender v. New York City Health & Hospitals Corp. 38 NY2d 662 at 668 p. 609
- Dorce v. United Rentals North America, Inc. 78 AD3d 1110 at 1111 p. 609
- Wade v. New York City Health & Hospitals Corp. 16 AD3d 677 p. 610
- Mello v. Hicksville Union Free School District No. 17 51 AD2d 580 at 581 p. 610
- Pugh v. Board of Education Central District No. 1-Fayetteville-Manlius School District 30 NY2d 968 p. 610