Summary
In Jeshurin v. Liberty Lines Transit, Inc. (191 AD2d 412) waiver was found where a municipal corporation first consented to the dismissal of its assertion that the complaint against it "fails to state a cause of action," but later attempted to assert that the plaintiff failed to serve a notice of claim within the one-year ninety day period.
Summary of this case from CGS Taxi LLC v. City of N.Y.Opinion
March 1, 1993
Appeal from the Supreme Court, Westchester County (Gagliardi, J.H.O.).
Ordered that the order is affirmed, without costs or disbursements.
We agree with the Supreme Court, that under the circumstances presented, the defendant Liberty Lines Transit, Inc. (hereinafter Liberty Lines) waived its right to assert the plaintiff's noncompliance with General Municipal Law § 50-e (see, General Municipal Law § 50-e [b]; Coleman v. Westchester St. Transp. Co., 57 N.Y.2d 734; Singer v. Liberty Lines, 183 A.D.2d 820; Frazier v. Liberty Lines Tr., 170 A.D.2d 304; Losada v. Liberty Lines Tr., 155 A.D.2d 337).
In its answer, Liberty Lines interposed as an "affirmative defense", the allegation that the plaintiff's complaint "fails to state a cause of action". The answer made no reference, however, to any requirement that the filing of a notice of claim was required pursuant to General Municipal Law § 50-e. Upon the receipt of Liberty Lines' answer, but prior to the expiration of the one-year and 90-day limitations period (General Municipal Law § 50-i), the plaintiff moved to strike that purported affirmative defense from Liberty Lines' answer. In response, Liberty Lines chose not to oppose the plaintiff's motion and permitted its assertion that the complaint failed to state a cause of action to be unconditionally stricken from its answer. As soon as the applicable limitations period had expired, however, Liberty Lines moved to dismiss the complaint on the ground that the plaintiff failed to file a notice of claim pursuant to General Municipal Law § 50-e.
The Supreme Court denied Liberty Lines' motion to dismiss, finding, inter alia, that by consenting to the dismissal of its assertion that the complaint "fails to state a cause of action", Liberty Lines had affirmatively waived its right to later assert the plaintiff's failure to serve a notice of claim. We agree.
A review of the complaint suggests that the only legally viable response to the plaintiff's motion to strike would have required Liberty Lines to argue, and thus to disclose, that the complaint failed to state a cause of action because it did not plead compliance with the notice of claim requirement. Liberty Lines, however, chose simply to withdraw its defense without comment — conduct which, under the circumstances presented, supports an inference that Liberty Lines deliberately withdrew its defense to ensure that the plaintiff would not be alerted to the notice of claim requirement until the one-year and 90-day period had elapsed. Further, it is settled that the failure to plead compliance with a notice of claim requirement constitutes a defect warranting dismissal of a complaint on the ground that it "fails to state a cause of action" (see, e.g., Boyle v. Kelley, 42 N.Y.2d 88, 91; Reaves v City of New York, 177 A.D.2d 437; Caruso v. City of Buffalo Urban Renewal Agency, 159 A.D.2d 996; Williamson Roofing Sheet Metal Co. v. Town of Parish, 139 A.D.2d 97, 106; see also, Davidson v Bronx Mun. Hosp., 64 N.Y.2d 59, 62). Accordingly, under the circumstances presented, we find that by withdrawing its allegation that the complaint "fails to state a cause of action", Liberty Lines also withdrew any claim that the complaint was defective by virtue of its failure to allege compliance with the notice of claim requirement. Liberty Lines cannot unconditionally withdraw an assertion in its answer which would encompass an omission relating to the notice of claim requirement, and then avoid the consequences of its conduct by later asserting the very same type of defect as soon as the applicable limitations period has expired (cf., Salesian Socy. v. Village of Ellenville, 41 N.Y.2d 521; Bender v. New York City Health Hosps. Corp., 38 N.Y.2d 662).
We have reviewed the parties' remaining contentions and find them to be without merit. Thompson, J.P., Rosenblatt, Lawrence and Santucci, JJ., concur.