                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 17, 2014                     517388
________________________________

In the Matter of ATLANTIC
   STATES LEGAL FOUNDATION,
   INC.,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
NEW YORK STATE DEPARTMENT OF
   ENVIRONMENTAL CONSERVATION,
                    Respondent,
                    et al.,
                    Respondents.
________________________________


Calendar Date:   June 4, 2014

Before:   Peters, P.J., Stein, Rose, Egan Jr. and Clark, JJ.

                             __________


      Nolan & Heller, LLP, Albany (Carl G. Dworkin of counsel),
for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Robert M.
Goldfarb of counsel), for New York State Department of
Environmental Conservation, respondent.

                             __________


Stein, J.

      Appeal from a judgment of the Supreme Court (Cahill, J.),
entered June 7, 2013 in Albany County, which, in a proceeding
pursuant to CPLR article 78, granted a motion by respondent
Department of Environmental Conservation to dismiss the petition.

      In August 2012, respondent Department of Environmental
Conservation (hereinafter DEC) issued a Freshwater Wetlands
permit (see ECL art 24) to respondent Stacy Cappon relating to
                              -2-                517388

property that she owned with her husband, respondent Brian
Cappon, in the Town of West Monroe, Oswego County. In December
2012, petitioner, a not-for-profit corporation, commenced this
CPLR article 78 proceeding challenging DEC's approval of the
permit. DEC subsequently moved to dismiss the petition as
untimely because the proceeding was not commenced within 30 days
of the issuance of the permit (see ECL 24-0705 [6]). In
opposition, petitioner argued that DEC should be equitably
estopped from raising timeliness grounds based on representations
allegedly made by Kenneth Lynch – a DEC regional director – to
Samuel Sage – petitioner's president – regarding the applicable
statute of limitations.1 Supreme Court found, among other
things, that equitable estoppel could not be invoked, granted
DEC's motion and dismissed the petition. Petitioner now appeals
and we affirm.

      We reject petitioner's contention that, in order to prevent
injustice, DEC should be equitably estopped from asserting a
statute of limitations defense because there was "an effective
tolling of the statute of limitations" by Lynch's alleged
representations to Sage. It is axiomatic that the doctrine of
equitable estoppel cannot generally be invoked against
governmental agencies in the exercise of their governmental
function (see Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d
359, 370 [1988]; Matter of Parkview Assoc. v City of New York, 71
NY2d 274, 282 [1988]; Matter of Daleview Nursing Home v Axelrod,
62 NY2d 30, 33 [1984]; Matter of Dear v New York State & Local
Retirement Sys., 115 AD3d 1141, 1143 [2014], lv denied ___ NY3d
___ [June 12, 2014]; Matter of Grella v Hevesi, 38 AD3d 113, 117
[2007]). However, estoppel may apply in certain "exceptional
cases in which there has been a showing of fraud,
misrepresentation, deception, or similar affirmative misconduct,
along with reasonable reliance thereon" (Stone Bridge Farms, Inc.
v County of Columbia, 88 AD3d 1209, 1212 [2011] [internal
quotation marks and citations omitted]; accord Town of Copake v
13 Lackawanna Props., LLC, 99 AD3d 1061, 1064 [2012], lv denied


    1
        Petitioner also argued that the 30-day statute of
limitations was not applicable, but has not raised that issue on
appeal.
                              -3-                517388

20 NY3d 857 [2013]; see Matter of Daleview Nursing Home v
Axelrod, 62 NY2d at 33; Bender v New York City Health & Hosps.
Corp., 38 NY2d 662, 668 [1976]; Matter of Village of Fleischmanns
[Delaware Natl. Bank of Delhi], 77 AD3d 1146, 1148 [2010]; see
also Matter of Oakwood Prop. Mgt., LLC v Town of Brunswick, 103
AD3d 1067, 1069 [2013], lv denied 21 NY3d 853 [2013]).


      Here, less than 30 days after the permit was issued, Sage
spoke with Lynch regarding petitioner's plans to challenge the
permit. According to Sage, Lynch explained that he was not
adequately familiar with the permit and needed to review the
matter. Sage "believe[d]" that it was during this conversation
that Lynch told him that petitioner did not need to commence a
CPLR article 78 proceeding within 30 days of the issuance of the
permit because petitioner had four months to bring a challenge,
which would give Lynch time to review it. Although Lynch
acknowledged having spoken to Sage about the permit, he denied
telling Sage that the applicable statute of limitations was four
months or that the limitations period would be extended. Indeed,
Lynch averred that he had no authority to waive or extend the
applicable statute of limitations on behalf of DEC, and the
statement that petitioner attributes to Lynch was, at best, akin
to erroneous advice that does not rise to the level necessary to
implicate the exception where estoppel may be invoked against a
governmental agency (see Matter of Village of Fleischmanns
[Delaware Natl. Bank of Delhi], 77 AD3d at 1148; Matter of
Amsterdam Nursing Home Corp. [1992] v Daines, 68 AD3d 1591, 1592
[2009]; see also Academy St. Assoc., Inc. v Spitzer, 44 AD3d 592,
593 [2007]).

      Moreover, considering petitioner's acknowledgment that it
was, at the very least, aware of the likelihood that a 30-day
statute of limitations applied,2 petitioner could not have
reasonably relied on the alleged representation made by Lynch,
despite the longstanding working relationship between Sage and


    2
        Petitioner's counsel averred that he advised Sage that
there "was probably a 30-day time limit" and recommended that a
CPLR article 78 petition be filed within 30 days.
                              -4-                  517388

Lynch (see Stone Bridge Farms, Inc. v County of Columbia, 88 AD3d
at 1213; Matter of Dagvadorj v DeFleur, 70 AD3d 1275, 1280
[2010], lv denied 14 NY3d 712 [2010]). To the extent not
specifically addressed herein, petitioner's remaining contentions
have been considered and found to be lacking in merit.

     Peters, P.J., Rose, Egan Jr. and Clark, JJ., concur.



     ORDERED that judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
