Renwick v. Town of Allegany

18 A.D.2d 877, 236 N.Y.S.2d 902, 1963 N.Y. App. Div. LEXIS 4731

Opinions

Memorandum by the Court.

The defendant-appellant’s motion to dismiss under rule 107 of the Rules of Civil Practice was properly denied. However, its motion to dismiss for failure to state a cause of action should" have been granted. It appears on the face of the complaint that 30 days had not elapsed between service of notice under section 50-e of the General Municipal Law and the commencement of the action (General Municipal Law, § 50-i; Thrall v. Cuban Vil., 88 App. Div. 410). The plaintiff made a cross motion to amend “and for such other further and different rlelief as to the court may seem just and proper.” This motion was denied becaiise the denial of the defendant-appellant’s motion to dismiss made that relief unnecessary. Upon the cross motion plaintiff claims that the defendant-appellant was estopped from asserting the insufficiency of the complaint and had [waived the right to do so. The plaintiff should have permission to set up facts alleging such waiver and estoppel in a supplemental pleading (Civ. Prac. Act, §§ 245, 245-b). For a discussion of the general principles of waiver and estoppel under somewhat similar circumstances see Triple Cities Constr. Co. v. Dan-Bar Constr. Co. (285 App. Div. 299, affd. 309 N. Y. 665).