Khela v City of New York, 2012 NY Slip Op 00753 (2nd Dept., 2012)
The Supreme Court erred in concluding that the defendants were equitably estopped from asserting the plaintiff's failure to serve a timely notice of claim upon the correct public entity. " The doctrine of equitable estoppel is to be invoked sparingly and only under exceptional circumstances'" (Ceely v New York City Health & Hosps. Corp., 162 AD2d 492, 493, quoting Matter of Gross v New York City Health & Hosps. Corp., 122 AD2d 793, 794). " [E]stoppel against a municipal defendant will lie only when the municipal defendant'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'" (Mohl v Town of Riverhead, 62 AD3d 969, 970, quoting Wade v New York City Health & Hosps. Corp., 16 AD3d 677, 677). Contrary to the plaintiff's contentions, the fact that the defendants may have conducted an examination pursuant to General Municipal Law § 50-h prior to making their motion to dismiss does not justify a finding of estoppel (see Dier v Suffolk County Water Auth., 84 AD3d 861, 862). Moreover, the defendants were under no duty to raise the failure to serve a timely notice of claim upon the proper entity as an affirmative defense in their answer (see Macias v City of New York, 201 AD2d 541; Ceely v New York City Health & Hosps. Corp., 162 AD2d at 493-494). There is no evidence in the record demonstrating that the defendants engaged in any misleading conduct which would support a finding of equitable estoppel (see Maxwell v City of New York, 29 AD3d at 541; Wade v New York City Health & Hosps. Corp., 16 AD3d at 677; Ceely v New York City Health & Hosps. Corp., 162 AD2d at 493).
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