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ARTICLE 78 PETITION WAS NOT SERVED UPON A PERSON AUTHORIZED TO RECEIVE SERVICE ON BEHALF OF THE NYC DEPARTMENT OF ENVIRONMENTAL PROTECTION (DEP); ALTHOUGH THE PROCESS SERVER ALLEGED THE PETITION WAS DELIVERED TO AN ATTORNEY AT THE DEP WHO SAID SHE WAS AUTHORIZED TO RECEIVE SERVICE, THE DOCTRINE OF EQUITABLE ESTOPPEL DID NOT APPLY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the NYC Department of Environmental Protection (DEP) was not properly served with an Article 78 petition and therefore the court did not have jurisdiction over this Freedom of Information Law (FOIL) action. The process server alleged the petition was delivered to an attorney at the DEP who said she was authorized to receive service. The Second Department found that the doctrine of equitable estoppel, based upon the DEP attorney’s assertion she was authorized to receive service, did not apply:

It is undisputed that the petitioner’s process server did not deliver the notice of petition and petition to the Corporation Counsel, or any other “person designated to receive process in a writing filed in the office of the clerk of New York county” (CPLR 311[a][2]). Because the petitioner did not effectuate service in strict compliance with CPLR 311(a)(2), it is irrelevant that the petitioner’s process server allegedly relied upon the representations of an attorney employed by the DEP … .

Contrary to the petitioner’s contention, the DEP should not be equitably estopped from asserting the petitioner’s failure to properly serve the DEP with the notice of petition. The doctrine of equitable estoppel should be invoked against governmental entities sparingly and only under exceptional circumstances … . Estoppel against a governmental entity will lie when the governmental entity acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes its position to its detriment or prejudice … . The fact that the DEP’s attorney may have identified herself as an agent who was “authorized by appointment to receive service at that address” is far removed from any clear expression of her status as a person designated to receive process on behalf of the City in a writing filed in the New York County Clerk’s office … . There is no evidence in the record demonstrating that the petitioner justifiably relied on any misleading conduct by the DEP which would support a finding of equitable estoppel … . Matter of Exxon Mobil Corp. v New York City Dept. of Envtl. Protection, 2019 NY Slip Op 08670, Second Dept 12-4-19

 

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