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Matter of Dockery v. Department of Housing

Appellate Division of the Supreme Court of New York, Second Department
Jan 29, 1996
637 N.Y.S.2d 183 (N.Y. App. Div. 1996)

Opinion

January 29, 1996

Appeal from the Supreme Court, Kings County (Greenstein, J.).


Ordered that the appeal from the order dated February 17, 1994, is dismissed, as that order was superseded by the order dated June 2, 1994, made upon reargument; and it is further,

Ordered that the order dated June 2, 1994, is affirmed insofar as appealed from; and it is further,

Ordered that the respondent is awarded one bill of costs.

The petitioner's proposed claim seeks damages for injuries which he allegedly sustained, inter alia, when unknown employees of the Department of Housing Preservation and Development of the City of New York (hereinafter the HPD) coerced and defrauded him into signing a consent order in a Housing Court matter. However, the petitioner's application for leave to serve a late notice of claim with respect to injuries arising from the consent order was not made until after the expiration of the applicable Statute of Limitations, and the petitioner has failed to demonstrate that the respondent engaged in any misleading conduct which would support a finding of equitable estoppel ( see, Bender v New York City Health Hosps. Corp., 38 N.Y.2d 662, 668; Zaiman v Metropolitan Tr. Auth., 186 A.D.2d 555; Francese v Sears, Roebuck Co., 185 A.D.2d 225). Accordingly, to the extent that the petitioner's proposed claim seeks damages for injuries arising from the consent order, the Supreme Court properly determined that it was without authority to grant leave to serve a late notice of claim ( see, Francese v Sears, Roebuck Co., supra; Siahaan v City of New York, 123 A.D.2d 620).

Furthermore, the court did not improvidently exercise its discretion in denying the petitioner leave to serve a late notice of claim with respect to injuries which he allegedly sustained when the HPD subsequently threatened to enter a default judgment against him for failing to comply with the Housing Court consent order. The petitioner's claim that he was unaware of the requirements of General Municipal Law § 50-e did not constitute a reasonable excuse for his failure to serve a timely notice of claim ( see, Matter of Plantin v New York City Hous. Auth., 203 A.D.2d 579), and the petitioner has failed to demonstrate that the HPD had actual notice of the facts underlying his claim at the time it accrued or within a reasonable time thereafter ( see, Matter of Serrano v New York City Hous. Auth., 197 A.D.2d 694; Matter of Siena v Marlboro Houses, 188 A.D.2d 534). Thompson, J.P., Friedmann, Krausman and Florio, JJ., concur.


Summaries of

Matter of Dockery v. Department of Housing

Appellate Division of the Supreme Court of New York, Second Department
Jan 29, 1996
637 N.Y.S.2d 183 (N.Y. App. Div. 1996)
Case details for

Matter of Dockery v. Department of Housing

Case Details

Full title:In the Matter of DEWEY DOCKERY, Appellant, v. DEPARTMENT OF HOUSING…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 29, 1996

Citations

637 N.Y.S.2d 183 (N.Y. App. Div. 1996)
637 N.Y.S.2d 183

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