Quintero v. Town of Babylon Indus. Development Agency

• Decision Date: 01 April 1991
• Citation: 567 N.Y.S.2d 870,172 A.D.2d 527
• Parties: In the Matter of Juana QUINTERO, Respondent, v. TOWN OF BABYLON INDUSTRIAL DEVELOPMENT AGENCY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 870

567 N.Y.S.2d 870

172 A.D.2d 527

In the Matter of Juana QUINTERO, Respondent, v. TOWN OF BABYLON INDUSTRIAL DEVELOPMENT AGENCY, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 1, 1991.

William T. Ryan, P.C., Mineola (Scott L. Gumpert, of counsel), for appellant.

Lance Ehrenberg, Mineola (Steven M. Jaeger, of counsel), for respondent.

Before MANGANO, P.J., and BROWN, SULLIVAN, HARWOOD and MILLER, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the the appeal is from an order of the Supreme Court, Suffolk County (Jones, J.), entered June 23, 1989, which granted the petitioner's application.

ORDERED that the order is reversed, on the law, and the application is denied, with costs.

After the petitioner was injured, she timely served a notice of claim and a summons and complaint upon the Town of Babylon. Subsequently learning that the proper defendant was the Town of Babylon Industrial Development Agency, she sought leave to serve a late notice of claim upon that latter entity. Although the relevant Statute of Limitations had expired (see, General Municipal Law § 880), the Supreme Court invoked the doctrine of equitable estoppel and granted the application. In support of this determination, the court relied on the "conduct" of the Town of Babylon which, "throughout this litigation * * * failed to hint that it was not the real party in interest". This was an insufficient ground upon which to base the invocation of the doctrine of equitable estoppel against the Town of Babylon Industrial Development Agency (see, Ceely v. New York City Health & Hosps. Corp., 162 A.D.2d 492, 556 N.Y.S.2d 694; Henderson v. City of New York, 143 A.D.2d 884, 533 N.Y.S.2d 547; Nicholas v. City of New York, 130 A.D.2d 470, 515 N.Y.S.2d 53; Albano v. Long Is. R.R. Co., 122 A.D.2d 923, 506 N.Y.S.2d 77; Soloff v. Board of Educ. of City of N.Y., 90 A.D.2d 829, 455 N.Y.S.2d 832; see also, Matter of Hamptons Hosp. & Med. Center v. Moore, 52 N.Y.2d 88, 93, n. 1, 436 N.Y.S.2d 239, 417 N.E.2d 533; Rodriguez v. City of New York, 169 A.D.2d 532, 564 N.Y.S.2d 384; cf., Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d 662, 382 N.Y.S.2d 18, 345 N.E.2d 561).