Opinion
July 12, 1985
Appeal from the Supreme Court, Genesee County, Morton, J.
Present — Dillon, P.J., Callahan, Boomer, Green and Schnepp, JJ.
Order unanimously reversed, on the law, with costs, and plaintiff's cross motion granted, in accordance with the following memorandum: Plaintiff appeals from an order which dismissed its complaint as against defendant, Village of LeRoy (Village) because of plaintiff's failure to comply with the provisions of CPLR 9802 and which denied plaintiff's cross motion to amend its complaint to allege compliance therewith. In our view, plaintiff's application for leave to verify its claim, nunc pro tunc, and to amend its complaint should have been granted. The record reveals that upon receipt of a letter from plaintiff dated January 10, 1979 notifying defendants of its intention to institute legal action to enforce its claim, defendants persuaded plaintiff to forbear suit and agreed to extend the Statute of Limitations. The parties had continuing negotiations and were fully aware of the nature and extent of the claims. Given the express prior representations made to the plaintiff, equitable estoppel principles are applicable to preserve the rights of the plaintiff and preclude the Village from raising the issue now ( see, Planet Constr. Corp. v. Board of Educ., 7 N.Y.2d 381, 385; Teresta v. City of New York, 304 N.Y. 440; Robinson v. City of New York, 24 A.D.2d 260; Erbe v. Lincoln Rochester Trust Co., 13 A.D.2d 211, appeals dismissed 11 N.Y.2d 754; Renda v. Frazer, 75 A.D.2d 490). Furthermore, we agree with Special Term that inasmuch as the Village did not plead the Statute of Limitations as an affirmative defense, it is waived (CPLR 3018 [b]; Arnold v Village of North Tarrytown, 137 App. Div. 68, affd 203 N.Y. 536).