Deluxe Development of New York, Inc. v. New York City School Construction Authority

249 A.D.2d 211, 671 N.Y.S.2d 752, 1998 N.Y. App. Div. LEXIS 4676

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 28, 1998
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Bertram Katz, J.), entered on or about February 10, 1997, which denied appellant’s motion to vacate an order of the same court and Justice, entered December 9, 1996, on default, granting respondent’s motion to file a late notice of claim, unanimously affirmed, without costs.

Appellant failed in the motion court to address the estoppel argument upon which respondent premised its motion to file a notice of claim, nunc pro tunc, pursuant to General Municipal Law § 50-e. Moreover, even if there had been some satisfactory answer by appellant to respondent’s claim that appellant was estopped from opposing its motion for permission to file a late notice of claim, the denial of appellant’s motion for vacatur would still have been proper since, as the IAS Court found, appellant failed to proffer a reasonable excuse for its default and it is, in any event, clear that appellant has not made the requisite showing of a meritorious defense. In the latter connection, we note that the Statute of Limitations defense proffered by appellant is manifestly without merit. Given the continuing nature of the trespass alleged by respondent, which trespass assertedly went unabated until respondent removed the unlawfully dumped debris from its property in or around July 1996, respondent’s claim for trespass was timely interposed (see, Restatement [Second] of Torts § 161 [1], comment b; Bomptin Realty Co. v City of New York, 196 Misc 218, revd on other grounds 276 App Div 1094). Concur — Sullivan, J. P., Rosenberger, Nardelli, Rubin and Andrias, JJ.