WITT v. TOWN OF AMHERST

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Mary Elizabeth WITT, Claimant-Appellant, v. TOWN OF AMHERST, Respondent-Respondent.  (Appeal No. 2.)

Decided: April 29, 2005

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, MARTOCHE, SMITH, AND PINE, JJ. Hogan & Willig, PLLC, Amherst (Diane R. Tiveron of Counsel), for Claimant-Appellant. E. Thomas Jones, Town Attorney, Williamsville, for Respondent-Respondent.

 Claimant appeals from an order granting her motion for leave to reargue and, upon reargument, adhering to the prior decision denying her application for leave to serve a late notice of claim.   We affirm.   Pursuant to General Municipal Law § 50-e(5), Supreme Court in its discretion may extend the time in which to serve a notice of claim, but in no event shall the extension “exceed the time limited for the commencement of an action by the claimant against the public corporation.”  General Municipal Law § 50-i(1) provides in relevant part that such an action must be commenced within one year and 90 days “after the happening of the event[s] upon which the claim is based,” and here those events are the issuance of the building permit and the certificate of occupancy to claimant in 1993 and 1994, respectively.   Because those events occurred more than eight years before claimant sought leave to serve a late notice of claim, the court properly denied claimant's application (see Nebbia v. County of Monroe, 92 A.D.2d 724, 725, 461 N.Y.S.2d 127, lv. denied 59 N.Y.2d 603, 463 N.Y.S.2d 1028, 450 N.E.2d 252;  see generally Klein v. City of Yonkers, 53 N.Y.2d 1011, 442 N.Y.S.2d 477, 425 N.E.2d 865).   We reject the contention of claimant that respondent's conduct constitutes a continuing wrong and thus that her application is timely.   As this Court wrote in Sniper v. City of Syracuse, 139 A.D.2d 93, 95, 530 N.Y.S.2d 374, “[a]lthough an act may create a dangerous condition which continues, the act itself cannot continue.”   We further reject claimant's contention that respondent is estopped from asserting claimant's untimeliness as a defense inasmuch as there is no evidence in the record that respondent engaged in the requisite “fraud, deception or misrepresentation” (Okie v. Village of Hamburg, 196 A.D.2d 228, 231, 609 N.Y.S.2d 986;  see generally 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).

We have reviewed claimant's remaining contentions and conclude that they are without merit.

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

MEMORANDUM: