Opinion
April 28, 1998
Appeal from the Supreme Court, Bronx County (Bertram Katz, J.).
Appellant failed in the motion court to address the estoppel argument upon which respondent premised its motion to file a notice of claim, nunc pro tunc, pursuant to General Municipal Law § 50-e. Moreover, even if there had been some satisfactory answer by appellant to respondent's claim that appellant was estopped from opposing its motion for permission to file a late notice of claim, the denial of appellant's motion for vacatur would still have been proper since, as the IAS Court found, appellant failed to proffer a reasonable excuse for its default and it is, in any event, clear that appellant has not made the requisite showing of a meritorious defense. In the latter connection, we note that the Statute of Limitations defense proffered by appellant is manifestly without merit. Given the continuing nature of the trespass alleged by respondent, which trespass assertedly went unabated until respondent removed the unlawfully dumped debris from its property in or around July 1996, respondent's claim for trespass was timely interposed (see, Restatement [Second] of Torts § 161 [1], comment b; Bomptin Realty Co. v. City of New York, 196 Misc. 218, revd on other grounds 276 App. Div. 1094).
Concur — Sullivan, J.P., Rosenberger, Nardelli, Rubin and Andrias, JJ.