LANGSTON v. The Trustees of Columbia University in the City of New York, Defendant–Appellant. (2019)

Order, Supreme Court, New York County (Alexander M. Tisch, J.), entered June 21, 2018, which denied defendant Trustees of Columbia University's motion for summary judgment dismissing the complaint as against it on statute of limitations grounds, unanimously affirmed, without costs.  Appeal from order, same court and Justice, entered September 17, 2018, which, upon reargument, adhered to the original determination, unanimously dismissed, without costs, as academic.

Plaintiffs raised an issue of fact as to whether the doctrine of equitable estoppel should preclude defendant from asserting its statute of limitations defense (see Simcuski v. Saeli, 44 N.Y.2d 442, 448–449, 406 N.Y.S.2d 259, 377 N.E.2d 713 [1978]).  Their counsel's affirmation detailing his communications with defendant, supported by the emails and documents exchanged, establishes that defendant misled plaintiffs about its ownership of the pipe beneath the gouge in the roadway on which plaintiff Erin Langston tripped and fell, inducing plaintiffs to refrain from filing a timely action against it.  Even if it were true that defendant did not own the pipe, its evasiveness in response to plaintiffs' requests for information about its relationship to the pipe or the function of the pipe is an affirmative act of concealment that could give rise to equitable estoppel (see General Stencils v. Chiappa, 18 N.Y.2d 125, 128, 272 N.Y.S.2d 337, 219 N.E.2d 169 [1966]).  Plaintiffs also established that they discovered information sufficient to prompt further inquiry only after the statute of limitations had expired (see Simcuski, 44 N.Y.2d at 449–450, 406 N.Y.S.2d 259, 377 N.E.2d 713;  Rite Aid Corp. v. Grass, 48 A.D.3d 363, 364–364, 854 N.Y.S.2d 1 [1st Dept. 2008];  Dowdell v. Greene County, 14 A.D.3d 750, 788 N.Y.S.2d 439 [3d Dept. 2005]).

Defendant's remaining arguments are improperly raised for the first time on appeal, and we decline to consider them.