Elmer v. Village of Honeoye Falls

Order unanimously affirmed, without costs, in accordance with the following memorandum: The complaint herein was properly dismissed. Plaintiffs failed to commence the action within the 18-month period governing contract actions against a village (CPLR 9802). While it is true that in a proper case a municipality may be estopped from asserting a Statute of Limitations defense (Bender v New York City Health & Hosps. Corp., 38 NY2d 662, 668; 17 McQuillin, Municipal Corporations [3d ed], § 49.07, p 138), plaintiffs produced no proof of affirmative misconduct or misrepresentation by the village which precluded them from bringing their action in a timely manner (cf. Simcuski v Saeli, 44 NY2d 442; General Stencils v Chiappa, 18 NY2d 125; Dupuis v Van Natten, 61 AD2d 293; Robinson v City of New York, 24 AD2d 260; Debes v Monroe County Water Auth., 16 AD2d 381; Erbe v Lincoln Rochester Trust Co., 13 AD2d 211, app dsmd 11 NY2d 754). (Appeal from order of Supreme Court, Monroe County, Kennedy, J. — dismiss complaint.) Present — Hancock, Jr., J. P., Denman, Boomer, Green and Moule, JJ.