Opinion
June 10, 1996
Appeal from the Supreme Court, Richmond County (Sangiorgio, J.).
Ordered that the order is modified, on the law, by deleting therefrom the provision granting that branch of the plaintiffs' motion which was to dismiss the Statute of Limitations defense and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed; and it is further,
Ordered that, upon searching the record, the complaint and any cross claim is dismissed insofar as asserted against the defendant City of New York and the action against the remaining defendant is severed; and it is further,
Ordered that the defendant City of New York is awarded one bill of costs payable by the respondents.
The plaintiff Maryanne Sagevick was allegedly injured when she tripped and fell on a defective sidewalk. She requested information from the New York City Department of Transportation as to whether any defect in the sidewalk had been reported. Based on the most recent map filed by Big Apple Pothole Sidewalk Protection Corporation (hereinafter Big Apple), the Department of Transportation responded that there was no record of any defect.
The injured plaintiff and her husband subsequently commenced this action against only the owner of the property abutting the sidewalk. After the Statute of Limitations had expired, the plaintiffs learned that an earlier Big Apple map had been filed which indicated a defect in the sidewalk and they then served an amended complaint adding the City of New York (hereinafter the City) as a defendant. In its answer, the City asserted the Statute of Limitations and failure to state a cause of action as affirmative defenses. The Supreme Court granted the plaintiffs' motion to strike those defenses, concluding that the City was equitably estopped from asserting the Statute of Limitations as a defense since it had negligently misinformed the plaintiffs that it had no notice of any defect.
The court properly dismissed the affirmative defense of failure to state a cause of action because, in this Judicial Department, such a defense cannot be interposed in an answer (see, Guglielmo v. Roosevelt Hosp. Staff Hous., 222 A.D.2d 403). The court erred, however, in concluding that the City was estopped from asserting a Statute of Limitations defense.
Where a municipality acts wrongfully or negligently, inducing reliance by a party to his or her detriment or prejudice, the municipality may be estopped from asserting a defense which otherwise could have been raised (see, Bender v. New York City Health Hosps. Corp., 38 N.Y.2d 662, 668; Boeckmann Assocs. v Board of Educ., 207 A.D.2d 773, 776). However, here, the City's response to the plaintiffs' inquiry, based on the most recently-filed Big Apple map, was not wrongful or negligent (see, Katz v. City of New York, 87 N.Y.2d 241). Further, the information sought by the plaintiffs was readily available from Big Apple (see, Katz v. City of New York, supra), which apparently also informed them that there was no record of any defect.
Since a motion to dismiss an affirmative defense searches the record (see, Saler v. City of New York, 96 A.D.2d 583) and the plaintiffs' claims against the City are clearly time barred, we dismiss the complaint and any cross claim insofar as asserted against the City. Miller, J.P., Copertino, Santucci and Altman, JJ., concur.