NOTARO v. POWER AUTHORITY OF STATE OF NEW YORK (2007)

Plaintiff commenced this action seeking to recover, inter alia, benefits under the Longshore and Harbor Workers' Compensation Act ( [LHWCA] 33 USC § 901 et seq.).   Supreme Court properly granted the motion of the Power Authority of the State of New York (defendant) for summary judgment dismissing the complaint against it. We note at the outset that plaintiff's contention that the court erred in granting that part of defendant's motion with respect to the federal maritime tort cause of action is raised for the first time in plaintiff's reply brief and thus is not properly before this Court (see Turner v. Canale, 15 A.D.3d 960, 961, 790 N.Y.S.2d 347, lv. denied 5 N.Y.3d 702, 799 N.Y.S.2d 773, 832 N.E.2d 1189;  Greene v. Xerox Corp., 244 A.D.2d 877, 878, 665 N.Y.S.2d 137, lv. denied 91 N.Y.2d 809, 670 N.Y.S.2d 403, 693 N.E.2d 750).   We further note that plaintiff failed to address that part of defendant's motion with respect to the Jones Act cause of action and, indeed, plaintiff stated in his brief that he will not pursue that cause of action.   Plaintiff therefore has abandoned any contention concerning that cause of action (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 609 N.Y.S.2d 745).

 With respect to the remaining cause of action, plaintiff contends that defendant is not a subdivision of the State of New York, thus rendering inapplicable the provision of the LHWCA that “[n]o compensation shall be payable in respect of the disability or death of an officer or employee of the United States, or any agency thereof, or of any State or foreign government, or any subdivision thereof” (33 USC § 903[b] ).  We reject plaintiff's contention, inasmuch as the statute creating defendant defines it as “a body corporate and politic, a political subdivision of the state” (Public Authorities Law § 1002 [1] ).

 Contrary to plaintiff's further contention, defendant is not equitably estopped from denying coverage under the LHWCA under the circumstances of this case.   Plaintiff invokes the doctrine of equitable estoppel to avoid the mandatory consequences of 33 USC § 903(b), but that doctrine “cannot be invoked to relieve a party from the mandatory operation of a statute” (Matter of Kiselgof v. New York State Div. of Hous. & Community Renewal, 22 A.D.3d 853, 854, 803 N.Y.S.2d 166 [internal quotation marks omitted];  see F.A.S.A. Constr. Corp. v. Village of Monroe, 14 A.D.3d 532, 534, 789 N.Y.S.2d 175).   Furthermore, equitable estoppel generally “is not available against a governmental agency in the exercise of its governmental functions” (Matter of Daleview Nursing Home v. Axelrod, 62 N.Y.2d 30, 33, 475 N.Y.S.2d 826, 464 N.E.2d 130;  see F.A.S.A. Constr. Corp., 14 A.D.3d at 533, 789 N.Y.S.2d 175).   There is an exception to the rule under “unusual circumstance[s]” (Matter of Grella v. Hevesi, 38 A.D.3d 113, 117, 827 N.Y.S.2d 756), “where a governmental subdivision acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice” (Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d 662, 668, 382 N.Y.S.2d 18, 345 N.E.2d 561;  see Delaware County Dept. of Social Servs. v. Pontonero, 31 A.D.3d 999, 1001, 820 N.Y.S.2d 151).   However, “erroneous advice by a government employee does not constitute the type of unusual circumstance[s] contemplated by the exception” (Grella, 38 A.D.3d at 117, 827 N.Y.S.2d 756).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: