Opinion
April 11, 1974
Appeal from the Niagara Special Term.
Present — Marsh, P.J., Moule, Cardamone, Simons and Mahoney, JJ.
Order unanimously reversed, without costs, and motion denied, with leave to plaintiff to file and serve a summons and complaint within 20 days after service of the order herein, if so advised, in accordance with the following memorandum: Special Term granted this order under that portion of subdivision 5 of section 50-e Gen. Mun. of the General Municipal Law, which vests discretionary authority in the court to grant leave to serve a late notice of claim where the claimant has failed to serve his notice within the time limited "by reason of his justifiable reliance upon settlement representations made in writing by an authorized representative of the party against which the claim is made or of its insurance carrier." We find no writing, standing by itself, which justified reliance upon settlement representations. However, if the allegations contained in the affidavit submitted by plaintiff in support of his application to serve a late notice are correct, it may well be that defendant, Cit of Niagara Falls, is estopped from setting up the defense of failure to fil timely notice of claim because of the activities, conduct and statements, combined with certain writings, of the representative of the insurance carrier representing said city. In such event, plaintiff would not be required to file a notice of claim. (See Daley v. Greece Cent. School Dist. No. 1, 21 A.D.2d 976, affd. 17 N.Y.2d 530; Debes v. Monroe County Water Auth., 16 A.D.2d 381.) In the complaint, if one is served, plaintiff should have the right to set forth the facts which establish that there is an estoppel against the defendant, which excused compliance by plaintiff with section 50-e Gen. Mun. of the General Municipal Law.