Elmer v. Village of Honeoye Falls

Appellate Division of the Supreme Court of New York

Elmer v. Village of Honeoye Falls

100 A.D.2d 734, 473 N.Y.S.2d 663, 1984 N.Y. App. Div. LEXIS 17729

Appellate Division of the Supreme Court of the State of New York·Decided March 6, 1984·Published·Cited by 1 cases

Opinion

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.

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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.

Elmer v. Village of Honeoye Falls, 100 A.D.2d 734, 473 N.Y.S.2d 663, 1984 N.Y. App. Div. LEXIS 17729 (N.Y. Ct. App. 1984).

Pincite

100 A.D.2d 734 (Elmer v. Village of Honeoye Falls) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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