You are here: / / ARTICLE 78 PETITION WAS NOT SERVED UPON A PERSON AUTHORIZED TO RECEIVE...
, ,

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

 

You might also like
MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED.
PLAINTIFF’S COMPLAINT SEEKING SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE CONTRACT PROPERLY DISMISSED BASED UPON THE LANGUAGE OF THE CONTRACT, PLAINTIFF DID NOT APPEAR AT EITHER SCHEDULED CLOSING AFTER SUBMITTING THE HIGHEST BID AND SIGNING THE CONTRACT (SECOND DEPT).
PLAINTIFF BANK DID NOT DEMONSTRATE STRICT COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 AND THEREFORE WAS NOT ENTITLED TO SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION; DEFENDANT’S MERE DENIAL OF RECEIPT OF THE NOTICE DID NOT WARRANT SUMMARY JUDGMENT IN DEFENDANT’S FAVOR (SECOND DEPT).
A MONETARY PENALTY IMPOSED UPON PLAINTIFF’S ATTORNEY, AS OPPOSED TO DISMISSAL OF THE COMPLAINT, WAS THE APPROPRIATE SANCTION FOR PLAINTIFF’S FAILURE TO PROVIDE DISCOVERY (SECOND DEPT).
FAILURE TO DETERMINE WHETHER DEFENDANT RECEIVED NOTICE OF THE SORA HEARING REQUIRED REVERSAL.
EMAIL CALLING INTO QUESTION THE LEGITIMACY OF PLAINTIFF’S PHD PROTECTED BY QUALIFIED PRIVILEGE (SECOND DEPT).
Police Did Not Have Founded Suspicion of Criminal Activity When Path of Parked Car Was Blocked by Police Vehicle/Suppression of Seized Drugs Should Have Been Granted
Court of Claims Must Determine the Interests of All Parties Named by the Attorney General as Potentially Entitled to Payment for a Taking by the State—Therefore a Claimant Must Join all the Parties Named by the Attorney General

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANT DRIVER WAVED TO PLAINTIFF’S DECEDENT, A PEDESTRIAN, INDICATING... PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT).