Brands v. Sperduti

43 A.D.2d 903, 351 N.Y.S.2d 249, 1974 N.Y. App. Div. LEXIS 5956

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 1974
• Status: Published

Opinion

Order unanimously reversed, without costs, motion granted and complaint dismissed. Memorandum: There is no evidence in the record that defendant made any representation or engaged in a course of conduct which led plaintiff to believe it would be unnecessary to commence litigation in order to settle plaintiff’s claim or that if litigation were commenced, the Statute of Limitations would not be pleaded in bar. Absent such evidence in the record, defendant’s motion to dismiss plaintiff’s complaint pursuant to section 50-i of the General Municipal Law, should have been granted. Robinson v. City of New York (24 A D 2d 260), upon which plaintiff relies, is clearly distinguishable from the instant case. In Robinson the parties entered into a written stipulation adjourning an examination before trial- and postponing trial until the completion of the examination. No such extenuating circumstances are present in the record before us. (Appeal from order of Erie Special Term denying motion to dismiss complaint.) Present — Goldman, P. J., Marsh, Moule, Cardámone and Simons, JJ.