Kim Rosen, Plaintiff(s), v. COUNTY OF SUFFOLK (2026)

On November 3, 2018, a tree fell in Commack. The tree came from land (the subject property) that was adjacent to the northbound lanes of Indian Head Road, just north of Jericho Turnpike. Indian Head Road is owned by the County of Suffolk (the County), while Jericho Turnpike is owned by the State (Bishop Affirmation, NYSCEF doc. 136, ¶ 6). The tree struck a car in a Friendly's parking lot. Plaintiff, Kim Rosen, was in the car and was allegedly injured by the falling tree.

After the accident, plaintiff served a notice of claim on the County. The bureau chief of the litigation bureau in the County Attorney's office then sent a letter to plaintiff's counsel stating "that the [n]otice of [c]laim does not state the nature of any claim against the County of Suffolk. (The tree described in the [n]otice of [c]laim is neither owned nor maintained by the County of Suffolk.)" (Letter [1-31-19], NYSCEF doc. 115). Plaintiff commenced this action against defendants, but alleges that she did not name the County as a defendant based on the records then available and the County's representation that the subject tree was not owned or maintained by the County.

Plaintiff also interposed a claim against the State in the Court of Claims. In that action, in 2025, the State produced an unrecorded easement for highway purposes over the subject property that was granted by the Long Island State Park Commission to the County (Easement [4-20-70], NYSCEF doc. 124 [beginning on PDF p. 15]). The easement, from 1970, also states that "[t]he party of the second part [the County] shall . . . supervise, operate, maintain[,] and police the premises herein described for highway purposes in good repair and in neat, safe, and sanitary condition so as to [e]nsure the safe[,] orderly[,] and proper use of the said premises and any facilities that may be placed thereon" (id. at PDF p. 17).

Based on the easement, plaintiff moved to (1) serve a second supplemental summons and second amended complaint that named the County as a defendant, (2) amend the caption accordingly, and (3) estop the County from interposing an affirmative defense of statute of limitations. This Court denied the motion, without prejudice to renewal, due to plaintiff's failure to include a version of the proposed second amended complaint clearly showing the changes thereto (Dec & Order [6-8-26], NYSCEF doc. 111). Plaintiff now renews her motion, and has included a redlined version of the proposed second amended complaint (Redlined Proposed Second Amended Complaint, NYSCEF doc. 129).

As the Court of Appeals has explained, "absent prejudice, courts are free to permit amendment" of pleadings (Kimso Apts., LLC v Gandhi, 24 NY3d 403, 411; see CPLR 3025). Indeed, leave to amend a pleading "should be freely given, provided that the proposed amendment does not prejudice or surprise the opposing party and is not palpably insufficient or patently devoid of merit" (Vidal v Claremont 99 Wall, LLC, 124 AD3d 767, 767-768; see Richer v JQ II Assoc., LLC, 166 AD3d 692, 695). "No evidentiary showing of merit is required under CPLR 3025 (b), and a court shall not examine the legal sufficiency or merits of a pleading unless the insufficiency or lack of merit is clear and free from doubt" (Krakovski v Starvos Assoc., LLC, 173 AD3d 1146, 1148 [quotation marks and citations omitted]; see Bank of NY v Karistina Enters., LLC, 209 AD3d 820, 822). A proposed amendment that adds a time-barred claim is patently devoid of merit (GITSIT Solutions, LLC v Azcuy, 242 AD3d 956, 959; Vides v Knapp's Landscaping, Inc., 239 AD3d 790, 791). The burden is on the party opposing a motion to amend a pleading to demonstrate prejudice (Kimso Apts., LLC, 24 NY3d at 411; Krakovski, 173 AD3d at 1148). "Prejudice is more than the mere exposure of the party to greater liability. Rather, there must be some indication that the party has been hindered in the preparation of the party's case or has been prevented from taking some measure in support of its position" (Kimso Apts., LLC, 24 NY3d at 411 [quotation marks, citations, and alterations omitted]; see Catnap, LLC v Cammeby's Mgt. Co., LLC, 170 AD3d 1103, 1105; Betz v Blatt, 160 AD3d 689, 693). "Mere lateness is not a barrier to the amendment"; it is only "lateness coupled with significant prejudice to the other side" that requires denial of a motion to amend a pleading (Cioffi v S.M. Foods, Inc., 178 AD3d 1015, 1016; see Krakovski, 173 AD3d at 1148).

Here, the proposed claim against the County would be time-barred (General Municipal Law § 50-i [1]). But plaintiff alleges that the County is equitably estopped from raising the statute of limitations as a defense based on the County's inaccurate representation that it did not own or maintain the subject tree. This issue can be determined in the context of plaintiff's motion to amend (see Hart v Marriott Intl., 304 AD2d 1057, 1059-1061 [holding, in the context of an appeal from the denial of a cross motion by the plaintiff to amend the complaint, that the defendant was equitably estopped from raising a defense of statute of limitations, so the amendment should have been allowed]).

The Court of Appeals has explained that when "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, that subdivision should be estopped from asserting a right or defense [that] it otherwise could have raised" (Bender v New York City Health & Hosps. Corp., 38 NY2d 662, 668). Indeed, equitable estoppel "may be asserted against a municipal defendant in exceptional circumstances involving the wrongful or negligent conduct of a governmental subdivision, or its misleading nonfeasance, which induces a party relying thereon to change his or her position to his or her detriment resulting in manifest injustice" (Receivable Collection Servs., LLC v Nassau County, 227 AD3d 834, 835 [quotation marks omitted]; see Moceri v Town of Islip, 225 AD3d 856, 857-858). "A plaintiff seeking to apply the doctrine of equitable estoppel must establish that subsequent and specific actions by defendants somehow kept him or her from timely bringing suit" (Robinson v Jamaica Hosp. Med. Ctr., 240 AD3d 534, 536 [quotation marks omitted]). An innocent misrepresentation may form the basis for the imposition of equitable estoppel; there is no requirement for malintent or scienter (see State Farm Ins. Co. v Lofstad, 278 AD2d 224, 225; Dupuis v Van Natten, 61 AD2d 293, 295-296; see generally 75 NY Jur 2d Limitations & Laches § 52).

Substantively, the proposed amendment is not totally devoid of merit. The County does not dispute the authenticity of the easement.¹ The County does not argue that the easement has terminated by its terms (see Easement [4-20-70], NYSCEF doc. 124, PDF p. 18; Fred F. French Inv. Co., Inc. v Jetter, 270 App Div 1048, 1048; see generally 49 NY Jur 2d Easements § 162), through abandonment (see e.g. Fenton v Floce Holdings, LLC, 229 AD3d 768, 770-771), or otherwise (see generally 49 NY Jur 2d Easements § 157 et seq).² The easement imposes a maintenance obligation on the County with respect to the subject property, as noted above. In any event, the dominant owner is responsible for maintaining easement property (Gates v AT&T Corp., 100 AD3d 1216, 1218; Raksin v Crown-Kingston Realty Assoc., 254 AD2d 472, 473, lv denied 94 NY2d 751). And a servient owner's maintenance of easement property is irrelevant to the dominant owner's liability to an injured third party (Otero v Rochester Broadway Theatre League, Inc., 235 AD3d 1287, 1290).³

Plaintiff further argues, correctly so, that the County is equitably estopped from interposing the statute of limitations as a defense (see Konner v New York City Tr. Auth., 143 AD3d 774, 776-777). The County affirmatively represented to plaintiff that it did not own or maintain the tree in question. Plaintiff has shown that that representation was wrong and lulled her into foregoing a lawsuit against the County.

(To be clear, the Court is not impugning the integrity of the County Attorney's office. By all accounts, the County Attorney's representation was made honestly and in good faith, and there is nothing in the record to suggest otherwise.)

Nor could plaintiff have discovered the easement herself (cf. Dowdell v Greene County, 14 AD3d 750, 751 [a village was not equitably estopped from asserting the statute of limitations as a defense, even though the village clerk disclaimed ownership of the accident situs in an affidavit, because the plaintiff personally observed village vehicles and employees working on the accident situs both before and after his accident, so his reliance on the affidavit was unreasonable]; Weber v Suffolk County Div. of Real Estate, 1 AD3d 590, 591, lv denied 1 NY3d 509). No one ever recorded the easement. And although this is the County's own easement, the County conceded "that the existence of the purported easement was unknown to anyone, certainly the staff at the Suffolk County Department of Public Works" (Bishop Affirmation, NYSCEF doc. 136, ¶ 48). It would be inequitable to say that plaintiff should have discovered the easement when the beneficial owner of the easement - the County - did not even know it existed.

The County's arguments against equitable estoppel are not persuasive. The County claims that it "has been surprised and prejudiced by the recent disclosure of a fifty five year old easement" [sic] (Bishop Affirmation, NYSCEF doc. 136, p. 11 [capitalizations omitted]). The Court understands that this is an old easement, and that it can be difficult to find old documents. But old or new, it is the County's own easement. The easement benefited only the County. The County should have known about it.

In any event, the County has not shown prejudice. The mere exposure to more liability is not prejudice, as noted above. Because the note of issue has not been filed, the County still has time to engage in discovery. And given the age of the easement, it is unclear how any prejudice that exists now would not have existed if plaintiff timely sued the County (see Flowers v Mombrun, 212 AD3d 713, 715). Significantly, another person who was injured in the same incident by the same falling tree timely sued the County, so the County had the opportunity to develop its defenses in the same manner as if plaintiff had timely sued it (see Complaint and County's Answer, Vollaro v J & B Restaurant Partners of Long Island II, LLC [index no. 618808/2019], NYSCEF doc. 117).

Although the County argues "that laches should be applied to the claim by New York State that Suffolk County was responsible to maintain trees on the [subject property]," the State is not a party to this action. This Court, in any event, has no jurisdiction to make any determination that affects the State (NY Const, art VI, § 9; Artibee v Home Place Corp., 28 NY3d 739, 746).

The County's other arguments have been considered and are rejected as meritless.

Accordingly, it is

ORDERED that plaintiff's motion to (1) serve a second supplemental summons and second amended complaint, (2) amend the caption accordingly, and (3) estop the County of Suffolk from interposing an affirmative defense of statute of limitations is granted; and it is further

ORDERED that the proposed second amended complaint (NYSCEF doc. 127) shall be deemed served on the County and all other parties as of the date that this order is uploaded to NYSCEF.

Dated: October 1, 2026

Hon. Joseph C. Pastoressa, J.S.C.

Papers considered: NYSCEF documents 112 through 147

FOOTNOTES

1.   The County accurately notes that it appears to be a conformed copy, but does not allege that it is a forgery or is otherwise inauthentic.

2.   Of course, the County may make such arguments in the future.

3.   No party makes any argument as to whether the subject easement is an easement in gross or an easement appurtenant (see City of New Rochelle v State of New York, 34 Misc 2d 454, 457 [holding that an easement for highway purposes "was an easement in gross, in that it conferred a right or privilege personal to the county only"] [citations omitted], revd on other grounds 19 AD2d 674, affd 14 NY2d 559; see generally 49 NY Jur 2d Easements §§ 7-11), and the Court expresses no determination on this issue. As the parties refer to the 1970 document as an easement, the Court is relying on easement law. If the easement is an easement in gross, which is a "mere personal, nonassignable, noninheritable privilege or license" (Loch Sheldrake Assoc. v Evans, 306 NY 297, 304 [stating that "(i)f we are to speak with strictest accuracy, there is no such thing as an 'easement in gross' "]; see Niceforo v Haeussler, 276 AD2d 949, 950; 49 NY Jur 2d Easements § 9 ["Modern courts have tended to treat an easement in gross in much the same manner as a license."), the Court notes that a licensee has a duty to maintain the premises subject to the license (Stevenson v Saratoga Performing Arts Ctr., Inc., 115 AD3d 1086, 1087; Torres v Washington Hgts. Bus. Improvement Dist. Mgt. Assn., Inc., 57 AD3d 214, 214).

Joseph C. Pastoressa, J.