Baltimore & Ohio Railroad v. County of Genesee

Order unanimously reversed, on the law, with costs, and plaintiff’s cross motion granted, in accordance with the following memorandum: Plaintiff appeals from an order which dismissed its complaint as against defendant, Village of LeRoy (Village) because of plaintiff’s failure to comply with the provisions of CPLR 9802 and which denied plaintiff’s cross motion to amend its complaint to allege compliance therewith. In our view, plaintiff’s application for leave to verify its claim, nunc pro tunc, and to amend its complaint should have been granted. The record reveals that upon receipt of a letter from plaintiff dated January 10, 1979 notifying defendants of its intention to institute legal action to enforce its claim, defendants persuaded plaintiff to forbear suit and agreed to extend the Statute of Limitations. The parties had continuing negotiations and were fully aware of the nature and extent of the claims. Given the express prior representations made to the plaintiff, equitable estoppel principles are applicable to preserve the rights of the plaintiff and preclude the Village from raising the issue now (see, Planet Constr. Corp. v Board of Educ., 7 NY2d 381, 385; Teresta v City of New York, 304 NY 440; Robinson v City of New York, 24 AD2d 260; Erbe v Lincoln Rochester Trust Co., 13 AD2d 211, appeals dismissed 11 NY2d 754; Renda v Frazer, 75 AD2d 490). Furthermore, we agree with Special Term that inasmuch as the Village did not plead the Statute of Limitations as an affirmative defense, it is waived (CPLR 3018 [b]; Arnold v Village of North Tarrytown, 137 App Div 68, affd 203 NY 536). (Appeal from order of Supreme Court, Genesee County, Morton, J. — dismiss complaint.) Present — Dillon, P. J., Callahan, Boomer, Green and Schnepp, JJ.