880 NYS2d 213 (2d Dep’t, May 26, 2009)The Town defended against a suit by a Contractor for breach of contract on the grounds that the Contractor failed to give the notice of claim required by Town Law Sec 65(3). That statute requires that “a written verified claim shall have been filed with the town clerk within six (6) months after the cause of action shall have accrued.” .
The contractor conceded that it had not filed its claim timely, but argued that it should be permitted to file a late notice of claim, and the Town was estopped form asserting its noncompliance with Sec 65(3).
In rejecting both of the contractor’s arguments the appellate court held:
(1) in contrast to other notice statutes, Town Law 65(3) contains no provision allowing the court to excuse noncompliance with its requirements; and
(2) A municipality may be estopped from asserting a claimant’s noncompliance with a notice of claim statute when the municipality’s “conduct was calculated to, or negligently did, mislead or discourage a party from serving a timely notice of claim, and when that conduct was justifiably relied upon by that party.”
In this case the court stated that “While making no express finding as to whether the [Town’s] conduct was improper or negligent, we find that the plaintiff’s reliance thereupon was not justifiable under the particular circumstance of this case.”
As a consequence the contractor’s claim was dismissed.