The instant action arises from a trip and fall that occurred on November 19, 2021 when plaintiff, Lisa Bracey Gillespie, was walking in the intersection of Saw Mill River Road and Dearbourne Street in the City of Yonkers, New York. Before the Court are the following two motions: 1) plaintiff's motion pursuant to New York Civil Practice Law and Rules ("CPLR") 2221 for leave to reargue and renew its prior motion for various forms of relief which was denied by this court on November 7, 2025 (Motion Seq. No. 8) and 2) defendant's motion pursuant to CPLR 3211 (a) (5), (a) (7) and CPLR 3212 dismissing all of plaintiff's claims in their entirety on the grounds that this action is time barred pursuant to General Municipal Law § 50-i (1) (c) and CPLR 217-a (Motion Seq. No. 9). For the reasons detailed herein, the plaintiff's motion for leave to renew and reargue is denied and the defendant's motion to dismiss the plaintiff's complaint is granted, with prejudice.

The following documents filed with the New York State Court Electronic Filing System (NYSCEF) were read and considered by the Court:

A recitation of facts and procedural history of this action are set forth in the various decisions and orders of this Court, including the Decision and Order dated November 7, 2025 (NYSCEF Doc. Nos. 199 & 200), which is the basis of the plaintiff's motion to renew and reargue.

In the instant motion, plaintiff argues that: 1) the Court improvidently exercised its discretion in disregarding the plaintiff's affidavit for the missing CPLR 2106 language and 2) that the Court "misconstrued" her prior motion as a discovery motion instead of a motion seeking sanctions for defendant's alleged failure to comply with various prior Court orders (NYSCEF Doc. Nos. 202 & 203). In further support of her motion, plaintiff argues that the complete copy of a transcript of a Court proceeding held on April 14, 2025 before this Court (Malone, J.) was not completed or available to file with her previous motion and this is the "reasonable justification" to allow the Court to grant a motion to renew and reargue pursuant to CPLR 2221 (d) and (e) (NYSCEF Doc. No. 203).

Defendant opposes the plaintiff's motion to renew and reargue on the basis that the plaintiff failed to show any new facts that would change the Court's decision or that the plaintiff failed to show how the Court overlooked or misapprehended the law when it rendered its decision (NYSCEF Doc. No. 211).

Turning to defendant's motion, defendant argues that since the plaintiff failed to timely file their summons and complaint, the Court has no discretion and must dismiss the complaint in its entirety pursuant to General Municipal Law §50-i (1) (c) and CPLR 217-a (NYSCEF Doc. No. 209).

Plaintiff opposes the defendant's motion arguing that the motion is "premature and devoid of any legal merit" because the claim that equitable estoppel may be asserted to survive a statute of limitations defense is a question of fact and not generally appropriate for summary disposition (NYSCEF Doc. No. 214).

Pursuant to CPLR 2221 (d), a motion for leave to reargue "shall be based upon matters of factor law allegedly overlooked or misapprehended by the court in determining the prior motion." It is settled that a motion to reargue is not designed "to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented" (McGill v Goldman, 261 AD2d 593, 594 [2d Dept 1999] [internal citations omitted]). When the motion is filed pursuant to CPLR 2221 (e), the motion to renew "shall contain a reasonable justification for the failure to present such facts on the original motion" (Joseph v. Simmons, 114 AD3d 644 [2d Dept. 2014] [internal citations omitted]).

In its prior decision, this Court did not consider plaintiff's affirmation in support of its motion (and the defendant's affirmation in opposition to plaintiff's motion and in support of defendant's cross motion) because they were neither notarized nor affirmed pursuant to CPLR 2106 (NYSCEF Doc. No. 168 & 178).

In her motion to reargue, plaintiff does not identify a single matter of fact or law overlooked or misapprehended by this Court. Instead, plaintiff argues that this Court improvidently exercised its discretion in disregarding the plaintiff's attorney affirmation. The Court finds this argument unpersuasive. Plaintiff cites a litany of trial court cases that show an inconsistency in how Courts addressed the affirmations missing the CPLR 2106 language. [*2]However, plaintiff miscomprehends the leading Second Department authority on this matter. Plaintiff argues that the Court improperly interpreted Kallo v Kane St. Synagogue, 241 AD3d 522 [2d Dept 2025]. Plaintiff 's argument is not persuasive. Kallo held that a defective affirmation that was missing the required language of CPLR 2106 may be corrected with the submission of a reply affirmation containing the requisite language (id. at 524). The Court's reliance on Kallo was to show that neither party in the previous motions before this Court used the mandatory language of CPLR 2106 nor corrected the defect in any supplemental papers.

Additionally, plaintiff argues that the Kallo court, using CPLR 2001, allowed for the consideration of an affirmation missing the required CPLR 2106 language. Plaintiff argues that since there is no prejudice to the defendant, both CPLR 2001 and the Kallo decision, the Court could have considered the plaintiff's affirmation.

This Court need not determine whether the defective papers are excusable in the purview of CPLR 2001 since there is no case support for the proposition that the Court had authority to overlook the requirements of CPLR 2106.

Accordingly, the plaintiff's motion to renew and reargue on the first alleged basis is denied.

Turning to the plaintiff's second argument, that there is new evidence to reasonably justify plaintiff's failure to present such facts pursuant to CPLR 2221 (e), this argument is equally unpersuasive. This purported new evidence, to wit, a transcript of the April 14, 2025 court appearance that was not available when the previous motion was filed, fails to provide any new facts for the Court's consideration, and as such, is not a "reasonable justification" for granting plaintiff's motion to renew.

Additionally, plaintiff posits that their previous motion seeking sanctions against the defendant City of New York is not a discovery motion and the Court "misconstrued" her motion (NYSCEF Doc. Nos. 202 & 203). However, plaintiff's request for sanctions against the defendant is based upon claims of lies and misrepresentations during a court appearance and filings with the Court for alleged failures to comply with discovery compliance orders (emphasis added). As such, there was no misunderstanding by this Court of the relief the plaintiff was seeking.

Defendant opposes plaintiff's motion on the grounds that there is no new evidence or facts to support plaintiff's motion, and that the transcript of the April 14, 2025 court appearance does not present new facts (NYSCEF Doc. No. 211). After reviewing the transcript of the April 14, 2025 appearance, the Court agrees. Furthermore, the cases cited by defendant support the Court's decision (see Semenov v Semenov, 98 AD3d 962, 964 [2d Dept 2012]; see also CitiMortgage, Inc. v Espinal, 136 AD3d 857 [2d Dept 2016]; 30 Clinton Place Owners, Inc. v Singh, 131 AD3d 467 [2d Dept 2015]). Accordingly, the plaintiff's motion to renew and reargue the November 7, 2025 Decision and Order of this Court is denied.

Despite the plaintiff's unfortunate accident and related injuries, this Court finds that the defendant's motion to dismiss the complaint is meritorious because the instant action was commenced after the statute of limitations expired and the doctrine of equitable estoppel does not apply in this case. Thus, the Court is compelled to dismiss the plaintiff's complaint.

The Court will first address the defendant's motion seeking dismissal of the complaint on the grounds that the action was not timely commenced pursuant to General Municipal Law § 50-i (1) (c) and CPLR 217-a. In that regard, defendant argues that since the plaintiff's accident occurred on November 19, 2021, the instant lawsuit should have been filed within one year and ninety days, which was February 17, 2023. Plaintiff commenced this action on March 1, 2023, [*3]which is twelve days beyond the statutory deadline (NYSCEF Doc. No. 209).

General Municipal Law § 50-i (1) (c) requires that an action against a municipality for personal injury or property damage must be commenced within one year and ninety days after "the happening of the event upon which the claim is based." Defendant also relies on CPLR 217-a, which mandates compliance with all the requirements of section fifty-e and subdivision one of section fifty-i of the General Municipal Law.

In opposition, plaintiff argues that the doctrine of equitable estoppel is a bar to dismissal of the complaint (NYSCEF No. 214). It is settled that equitable estoppel is not a cause of action, hence, the inclusion of this doctrine as a cause of action in the complaint is wholly inappropriate. 57 NY Jurisprudence 2nd, Estoppel, § 5 reads, in pertinent part:

The doctrine of equitable estoppel is to be invoked sparingly and only under exceptional circumstances and should be applied only when the grounds for its application are clearly and satisfactorily established and only when the failure to do so would operate to defeat a right legally and rightfully obtained. The moving party bears the burden to show by clear and convincing evidence that the movant is entitled to invoke the doctrine of equitable estoppel.

Equitable estoppel cannot be applied to create a right that does not already exist but merely prevents the denial of a right that is claimed to have arisen otherwise.

Equitable estoppel is not a cause of action or a defense; it is, rather, an equitable bar to the assertion of a defense or claim. Equitable estoppel is invoked to prohibit a party from engaging in certain conduct and cannot be used as the basis to recover money damages. Equitable estoppel may be used to hold a defendant to its purported obligations but cannot be used as the sole basis for recovery of damages.

An equitable estoppel argument is a doctrine "to be invoked sparingly and only under exceptional circumstances" (Pales v New York City Health & Hosps. Corp., 216 AD3d 807 [2d Dept 2023], quoting Sanchez v Jericho Sch. Dist., 180 AD3d 828, 830 [2d Dept 2020]; Incorporated Vil. of Freeport v Freeport Plaza W., LLC, 206 AD3d 703, 704 [2d Dept 2022]; Ceely v New York City Health & Hosps. Corp., 162 AD2d 492, 493 [2d Dept 1990]; see Pierson v City of New York, 56 NY2d 950 [1982]; see also GML § 50-e [5]). Equitable estoppel against a municipality's litigation posture lies when the municipality's conduct was calculated to, or negligently did, mislead or discourage a party from proceeding timely against the municipality, and when such conduct was justifiably relied on by that party (see Pales, 216 AD3d at 808, quoting Khela v City of New York, 91 AD3d 912, 914 [2d Dept 2012]; Mohl v Town of Riverhead, 62 AD3d 969 [2d Dept 2009]).

Here, plaintiff has failed to provide any evidence that defendant did anything that was calculated to mislead or discourage the plaintiff from filing suit against the defendant in a timely manner. Plaintiff's self-serving claims that they were waiting for information regarding the tender of the lawsuit from the City of Yonkers to the State of New York is insufficient to sustain the burden.

The cases cited by the plaintiff to support its position that equitable estoppel is appropriate here are unpersuasive. Moreover, the Court need not reach a decision on plaintiff's equitable estoppel claims since pleading it as a cause of action is wholly inappropriate under the caselaw cited herein.

Defendant argues, and this Court agrees, that a Court has no discretion to allow the commencing of an action against a municipal defendant beyond the statutory time frame. The strict adherence to the one year and ninety-day rule has been consistently upheld by the Courts. [*4][see Pierson v New York, 56 NY2d 950, 955 (1982); Giblin v Nassau County Med. Ctr., 61 NY2d 67, 69 (1984); Campbell v City of New York, 4 NY3d 200, 203 (2005); Jaime v City of New York, 41 NY3d 531 (2024)].

Accordingly, the defendant's motion pursuant to CPLR 3211(a) (5), (a) (7) and 3212 seeking to dismiss the plaintiff's complaint in its entirety on the grounds that the action is time barred pursuant to General Municipal Law § 50-i (1) (c) and CPLR 217-a is granted, with prejudice.

All other arguments raised on these motions and evidence submitted by the parties in connection thereto have been considered by this court notwithstanding the specific absence of reference thereto.

Accordingly, it is hereby

ORDERED, that plaintiff's motion, pursuant to CPLR 2221, for leave to reargue and renew its prior motion for various forms of relief which was denied by this Court in its Decision and Order of November 7, 2025 is hereby DENIED; and it is further

ORDERED, that defendant's motion pursuant to CPLR 3211 (a) (5), (a) (7) and CPLR 3212 dismissing all claims in their entirety on the grounds that this action is time barred pursuant to General Municipal Law § 50-i (1) (c) and CPLR 217-a is hereby GRANTED, with prejudice.

The foregoing constitutes the Decision and Order of this Court.