Ashe v. Niagara Frontier Transportation Authority

Appellate Division of the Supreme Court of New York

Ashe v. Niagara Frontier Transportation Authority

294 A.D.2d 842, 740 N.Y.S.2d 909, 2002 N.Y. App. Div. LEXIS 4516

Appellate Division of the Supreme Court of the State of New York·Decided May 3, 2002·Published·Cited by 4 cases

Opinion

—Appeal from an order of Supreme Court, Erie County (Glownia, J.), entered February 2, 2001, which granted defendants’ motion and dismissed the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly granted defendants’ motion to dismiss the complaint as time-barred. Contrary to plaintiff’s contention, defendants are not estopped from asserting the statute of limitations as a defense where, as here, there is no proof that plaintiff “was induced by fraud, misrepresentations or deception to refrain from filing a timely action” (Simcuski v Saeli, 44 NY2d 442, 449). Although the parties had [843] numerous discussions concerning whether defendants would pay plaintiff no-fault benefits, they had only preliminarily discussed settlement of the personal injury claim, and plaintiff had not yet made a demand for settlement. Thus, it cannot be said that defendants “improperly lull[ed] the plaintiff into failing to bring h[er] claim” (Procco v Kennedy, 88 AD2d 761, 761, affd 58 NY2d 804). Present—Pigott, Jr., P.J., Pine, Hayes, Kehoe and Gorski, JJ.

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—Appeal from an order of Supreme Court, Erie County (Glownia, J.), entered February 2, 2001, which granted defendants’ motion and dismissed the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly granted defendants’ motion to dismiss the complaint as time-barred. Contrary to plaintiff’s contention, defendants are not estopped from asserting the statute of limitations as a defense where, as here, there is no proof that plaintiff “was induced by fraud, misrepresentations or deception to refrain from filing a timely action” (Simcuski v Saeli, 44 NY2d 442, 449). Although the parties had [843] numerous discussions concerning whether defendants would pay plaintiff no-fault benefits, they had only preliminarily discussed settlement of the personal injury claim, and plaintiff had not yet made a demand for settlement. Thus, it cannot be said that defendants “improperly lull[ed] the plaintiff into failing to bring h[er] claim” (Procco v Kennedy, 88 AD2d 761, 761, affd 58 NY2d 804). Present—Pigott, Jr., P.J., Pine, Hayes, Kehoe and Gorski, JJ.

Ashe v. Niagara Frontier Transportation Authority, 294 A.D.2d 842, 740 N.Y.S.2d 909, 2002 N.Y. App. Div. LEXIS 4516 (N.Y. Ct. App. 2002).

Pincite

294 A.D.2d 842 (Ashe v. Niagara Frontier Transportation Authority) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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