Troeller v. Klein
918 N.Y.S.2d 436
N.Y. App. Div.
2011
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Robert J. Troeller, Respondent, v Joel I. Klein, Appellant.

Supreme Court, Appellate Division, First Department, New York

March 15, 2011

918 NYS2d 436

Petitioner‘s cause of action for breach of contract accrued on March 22, 2007, when he knew that at least some members of his union had not been paid the amount allegedly due under the January 2007 stipulation of settlement between the union and the Department of Education (DOE), and his lawyer wrote to DOE‘s lawyer that the parties’ agreement was “quite different” from the way DOE was interpreting it (see , lv dismissed ). Because the petition to deem the notice timely was brought more than one year after March 22, 2007, the court lacked the authority to entertain it (see Education Law § 3813 [2-a], [2-b]; , lv dismissed ).

Petitioner‘s argument that respondent should be estopped from asserting a late notice of claim defense because respondent did not respond to petitioner‘s requests for information until May 10, 2007 is unavailing. “An estoppel cannot be founded upon defendant‘s failure to communicate with plaintiff in response to . . . bills” (, affd ). A fortiori, an estoppel cannot be founded on respondent‘s delay in responding to petitioner‘s requests for information.

Petitioner‘s contention that CPLR 204 (b) tolled the statute of limitations because his union and DOE made arguments to an arbitrator about the meaning of the stipulation is also unavailing. To toll the statute of limitations, the arbitration must have been “instituted by the parties in order to resolve the present controversy” (; see also , lv denied ). The arbitration between the union and DOE concerned the Custodian Engineers who were excluded from the stipulation of settlement. The present controversy concerns the Custodian Engineers who were covered by the stipulation. Concur—Andrias, J.P., Friedman, McGuire, Acosta and DeGrasse, JJ.