Opinion
2014-07-17
In the Matter of ATLANTIC STATES LEGAL FOUNDATION, INC., Appellant, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondent, et al., Respondents.
Nolan & Heller, LLP, Albany (Carl G. Dworkin of counsel), for appellant. Eric T. Schneiderman, Attorney General, Albany (Robert M. Goldfarb of counsel), for New York State Department of Environmental Conservation, respondent.
Nolan & Heller, LLP, Albany (Carl G. Dworkin of counsel), for appellant. Eric T. Schneiderman, Attorney General, Albany (Robert M. Goldfarb of counsel), for New York State Department of Environmental Conservation, respondent.
Before: PETERS, P.J., STEIN, ROSE, EGAN JR. and CLARK, JJ.
STEIN, J.
Appeal from a judgment of the Supreme Court (Cahill, J.), entered June 7, 2013 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted a motion by respondent Department of Environmental Conservation to dismiss the petition.
In August 2012, respondent Department of Environmental Conservation (hereinafter DEC) issued a Freshwater Wetlands permit ( see ECL art. 24) to respondent Stacy Cappon relating to property that she owned with her husband, respondent Brian Cappon, in the Town of West Monroe, Oswego County. In December 2012, petitioner, a not-for-profit corporation, commenced this CPLR article 78 proceeding challenging DEC's approval of the permit. DEC subsequently moved to dismiss the petition as untimely because the proceeding was not commenced within 30 days of the issuance of the permit ( seeECL 24–0705[6] ). In opposition, petitioner argued that DEC should be equitably estopped from raising timeliness grounds based on representations allegedly made by Kenneth Lynch—a DEC regional director—to Samuel Sage—petitioner's president—regarding the applicable statute of limitations. Supreme Court found, among other things, that equitable estoppel could not be invoked, granted DEC's motion and dismissed the petition. Petitioner now appeals and we affirm.
Petitioner also argued that the 30–day statute of limitations was not applicable, but has not raised that issue on appeal.
We reject petitioner's contention that, in order to prevent injustice, DEC should be equitably estopped from asserting a statute of limitations defense because there was “an effective tolling of the statute of limitations” by Lynch's alleged representationsto Sage. It is axiomatic that the doctrine of equitable estoppel cannot generally be invoked against governmental agencies in the exercise of their governmental function ( see Matter of E.F.S. Ventures Corp. v. Foster, 71 N.Y.2d 359, 370, 526 N.Y.S.2d 56, 520 N.E.2d 1345 [1988]; Matter of Parkview Assoc. v. City of New York, 71 N.Y.2d 274, 282, 525 N.Y.S.2d 176, 519 N.E.2d 1372 [1988]; Matter of Daleview Nursing Home v. Axelrod, 62 N.Y.2d 30, 33, 475 N.Y.S.2d 826, 464 N.E.2d 130 [1984]; Matter of Dear v. New York State & Local Retirement Sys., 115 A.D.3d 1141, 1143, 982 N.Y.S.2d 604 [2014], lv. denied ––– N.Y.3d ––––, 2014 WL 2609529 [June 12, 2014]; Matter of Grella v. Hevesi, 38 A.D.3d 113, 117, 827 N.Y.S.2d 756 [2007] ). However, estoppel may apply in certain “exceptional cases in which there has been a showing of fraud, misrepresentation, deception, or similar affirmative misconduct, along with reasonable reliance thereon” (Stone Bridge Farms, Inc. v. County of Columbia, 88 A.D.3d 1209, 1212, 931 N.Y.S.2d 449 [2011] [internal quotation marks and citations omitted]; accord Town of Copake v. 13 Lackawanna Props., LLC, 99 A.D.3d 1061, 1064, 952 N.Y.S.2d 780 [2012], lv. denied20 N.Y.3d 857, 2013 WL 149680 [2013]; see Matter of Daleview Nursing Home v. Axelrod, 62 N.Y.2d at 33, 475 N.Y.S.2d 826, 464 N.E.2d 130; 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 [1976]; Matter of Village of Fleischmanns [Delaware Natl. Bank of Delhi], 77 A.D.3d 1146, 1148, 909 N.Y.S.2d 564 [2010]; see also Matter of Oakwood Prop. Mgt., LLC v. Town of Brunswick, 103 A.D.3d 1067, 1069, 960 N.Y.S.2d 535 [2013], lv. denied21 N.Y.3d 853, 2013 WL 1800446 [2013] ).
Here, less than 30 days after the permit was issued, Sage spoke with Lynch regarding petitioner's plans to challenge the permit. According to Sage, Lynch explained that he was not adequately familiar with the permit and needed to review the matter. Sage “believe[d]” that it was during this conversation that Lynch told him that petitioner did not need to commence a CPLR article 78 proceeding within 30 days of the issuance of the permit because petitioner had four months to bring a challenge, which would give Lynch time to review it. Although Lynch acknowledged having spoken to Sage about the permit, he denied telling Sage that the applicable statute of limitations was four months or that the limitations period would be extended. Indeed, Lynch averred that he had no authority to waive or extend the applicable statute of limitations on behalf of DEC, and the statement that petitioner attributes to Lynch was, at best, akin to erroneous advice that does not rise to the level necessary to implicate the exception where estoppel may be invoked against a governmental agency ( see Matter of Village of Fleischmanns [Delaware Natl. Bank of Delhi], 77 A.D.3d at 1148, 909 N.Y.S.2d 564; Matter of Amsterdam Nursing Home Corp. [1992] v. Daines, 68 A.D.3d 1591, 1592, 892 N.Y.S.2d 608 [2009]; see also Academy St. Assoc., Inc. v. Spitzer, 44 A.D.3d 592, 593, 845 N.Y.S.2d 237 [2007] ).
Moreover, considering petitioner's acknowledgment that it was, at the very least, aware of the likelihood that a 30–day statute of limitations applied, petitioner could not have reasonably relied on the alleged representation made by Lynch, despite the longstanding working relationship between Sage and Lynch ( see Stone Bridge Farms, Inc. v. County of Columbia, 88 A.D.3d at 1213, 931 N.Y.S.2d 449; Matter of Dagvadorj v. DeFleur, 70 A.D.3d 1275, 1280, 896 N.Y.S.2d 211 [2010], lv. denied14 N.Y.3d 712, 2010 WL 2196573 [2010] ). To the extent not specifically addressed herein, petitioner's remaining contentions have been considered and found to be lacking in merit.
Petitioner's counsel averred that he advised Sage that there “was probably a 30–day time limit” and recommended that a CPLR article 78 petition be filed within 30 days.
ORDERED that judgment is affirmed, without costs.