Opinion
January 13, 1992
Appeal from the Supreme Court, Suffolk County (Hand, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The court properly denied that branch of the motion of the plaintiff Town which was to dismiss the defendant's counterclaims based upon a failure to file a notice of claim and properly granted the defendant leave to serve a late notice of claim and an amended answer. Although a number of disputes arose between the parties in connection with the performance of contracts to remove recyclable materials from the Town's facility, the defendant continued to remove materials from the Town and the parties negotiated in an effort to resolve their differences. It was not until negotiations broke down that the Town commenced a breach of contract action. The defendant interposed a number of defenses and counterclaims without first filing a notice of claim. Under the circumstances, we find that the Town should be estopped from raising the defendant's failure to file a notice of claim (see, Kartiganer Assocs. v. Town of Newburgh, 57 A.D.2d 857; Aqua Dredge v. Little Harbor Sound Civic Improvement Assn., 114 A.D.2d 825, 826; see also, Bender v. New York City Health Hosps. Corp., 38 N.Y.2d 662; Frink v. Town of Amenia, 91 Misc.2d 491; McCabe v. Nassau County Med. Center, 453 F.2d 698; Byram Riv. v Village of Port Chester, 394 F. Supp. 618). The Town had actual, timely knowledge of the defendant's claims and was not prejudiced by the lack of a formal notice of claim. In addition, the defendant apparently relied in good faith on the Town's entreaties to negotiate, not retaining counsel until very late in the process. Moreover, as the Town is pursuing claims under the same contracts as the defendant is pursuing counterclaims, the Town's reliance upon the notice of claim requirement is more in the nature of a sword than a shield.
With regard to the substance of the defendant's counterclaims and affirmative defenses concerning express and implied warranties, commercial impracticability, and the interpretation of the price terms of the contracts, which we find to be ambiguous, there are issues of fact precluding summary judgment (see, Hartford Acc. Indem. Co. v. Wesolowski, 33 N.Y.2d 169, 172; DeFoe Corp. v. Manitowoc-Forsythe Corp., 129 A.D.2d 607; Fil-Coil Co. v. International Power Sys. Equip. Corp., 123 A.D.2d 599; D.C. Leathers v. Gelmart Indus., 125 A.D.2d 738). Mangano, P.J., Kunzeman, Eiber and Balletta, JJ., concur.