Inc. Vill. of Freeport v. Freeport Plaza W., LLC

206 A.D.3d 703

170 N.Y.S.3d 166

INCORPORATED VILLAGE OF FREEPORT, appellant,

v.FREEPORT PLAZA WEST, LLC, respondent.

2019–13120

Index No. 602227/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 29, 2022

June 8, 2022

The Law Office of Steven Cohn, P.C., Carle Plaza, NY (Susan E. Dantzig of counsel), for appellant.

Harfenist Kraut & Perlstein, LLP, Lake Success, NY (Steven J. Harfenist of counsel), for respondent.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, JOSEPH J. MALTESE, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Timothy S. Driscoll, J.), dated November 7, 2019. The order denied the plaintiff's motion pursuant to CPLR 3211(a)(7) to dismiss the defendant's counterclaim.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion pursuant to CPLR 3211(a)(7) to dismiss the defendant's counterclaim is granted.

In March 2017, the parties entered into contract wherein the defendant agreed to purchase real property located in the Village of Freeport from the plaintiff. In February 2018, the plaintiff commenced this action against the defendant, alleging, inter alia, that the defendant breached the contract. The defendant answered the amended complaint, and asserted a counterclaim against the plaintiff alleging that the plaintiff's commencement of this action constituted an anticipatory repudiation of the contract. The plaintiff moved pursuant to CPLR 3211(a)(7) to dismiss the counterclaim on the ground that the defendant failed to file a notice of claim as required by CPLR 9802. The Supreme Court denied the motion, and the plaintiff appeals.

Pursuant to CPLR 9802, "no action shall be maintained against the village upon or arising out of a contract of the village ... unless a written verified claim shall have been filed with the village clerk within one year after the cause of action shall have accrued." " ‘[S]tatutory requirements conditioning suit [against a governmental entity] must be strictly construed’ " ( Varsity Tr., Inc. v. Board of Educ. of City of N.Y., 5 N.Y.3d 532, 536, 806 N.Y.S.2d 457, 840 N.E.2d 569, quoting Dreger v. New York State Thruway Auth., 81 N.Y.2d 721, 724, 593 N.Y.S.2d 758, 609 N.E.2d 111 ). This is true even when the municipality " ‘had actual knowledge of the claim or failed to demonstrate actual prejudice’ " ( Varsity Tr., Inc. v. Board of Educ. of City of N.Y., 5 N.Y.3d at 536, 806 N.Y.S.2d 457, 840 N.E.2d 569, quoting Parochial Bus Sys. Inc. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 548, 470 N.Y.S.2d 564, 458 N.E.2d 1241 ).

"The doctrine of equitable estoppel is to be invoked sparingly and only under exceptional circumstances" ( Sanchez v. Jericho Sch. Dist., 180 A.D.3d 828, 830, 120 N.Y.S.3d 163 [internal quotation marks omitted]). " ‘[E]stoppel against a [municipality] will lie only when the [municipality'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’ " ( Khela v. City of New York, 91 A.D.3d 912, 914, 937 N.Y.S.2d 311, quoting Mohl v. Town of Riverhead, 62 A.D.3d 969, 970, 880 N.Y.S.2d 313 [internal quotation marks omitted]).

Here, there is no dispute that the defendant failed to file a notice of claim with the village clerk within one year after its cause of action for breach of contract accrued, as required by CPLR 9802. The Supreme Court erred in determining that the plaintiff, in effect, was estopped from raising a defense based on the defendant's failure to comply with CPLR 9802. Contrary to the defendant's contention, the plaintiff's exchanging of discovery and participation in the depositions of witnesses did not estop it from raising a defense pursuant to CPLR 9802, as mere participation in litigation does not constitute action calculated to mislead or discourage the defendant from filing a notice of claim (see Hochberg v. City of New York, 99 A.D.2d 1028, 1029, 473 N.Y.S.2d 820, affd 63 N.Y.2d 665, 479 N.Y.S.2d 524, 468 N.E.2d 706 ; Khela v. City of New York, 91 A.D.3d at 914, 937 N.Y.S.2d 311 ; Dorce v. United Rentals N. Am., Inc., 78 A.D.3d 1110, 1111, 915 N.Y.S.2d 79 ; Wade v. New York City Health & Hosps. Corp., 16 A.D.3d 677, 793 N.Y.S.2d 68 ). Moreover, it cannot be said that the plaintiff's participation in the litigation was merely an attempt to lull the defendant to sleep on its rights, as the plaintiff was participating in the litigation to prosecute its own breach of contract claim. In addition, contrary to the defendant's contention, the plaintiff had no obligation to apprise the defendant that it had failed to timely serve a notice of claim (see Khela v. City of New York, 91 A.D.3d at 914, 937 N.Y.S.2d 311 ; Dorce v. United Rentals N. Am., Inc., 78 A.D.3d at 1111, 915 N.Y.S.2d 79 ; Wade v. New York City Health & Hosps. Corp., 16 A.D.3d 677, 793 N.Y.S.2d 68 ). ( Town of Smithtown v. Jet Paper Stock Corp., 179 A.D.2d 634, 578 N.Y.S.2d 244 )...