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Reep v. Mamaroneck Union Free School Dist.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 16, 2008

MAURICE REEP, ETC., ET AL., RESPONDENTS,
v.
MAMARONECK UNION FREE SCHOOL DISTRICT, APPELLANT.

In an action to recover damages for negligence, the defendant appeals from an order of the Supreme Court, Westchester County (Nicolai, J.), entered December 11, 2008, which denied its motion to dismiss the complaint for failure to serve a timely notice of claim pursuant to Education Law § 3813(1) and as time-barred pursuant to General Municipal Law § 50-i.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

REINALDO E. RIVERA, J.P., ROBERT A. SPOLZINO, EDWARD D. CARNI and JOHN M. LEVENTHAL, JJ.

(Index No. 22767/06)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

Under the circumstances of this case, the Supreme Court correctly determined that the defendant was estopped from asserting a notice of claim defense as a matter of law (see Conquest Cleaning Corp. v New York City School Constr. Auth., 279 AD2d 546).

Additionally, the Supreme Court properly determined, in effect, that based upon the undisputed facts the defendant was equitably estopped from asserting the statute of limitations defense (see Zumpano v Quinn, 6 NY3d 666, 675; Gleason v Spota, 194 AD2d 764, 765).

The defendant's remaining contentions are without merit.

RIVERA, J.P., SPOLZINO, CARNI and LEVENTHAL, JJ., concur.

20081216

© 1992-2008 VersusLaw Inc.



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