Brauner v. Metro-North Commuter Railroad

227 A.D.2d 306, 642 N.Y.S.2d 677

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 1996
• Status: Published

Opinion

Order, Supreme Court, New York County (William Davis, J.), entered April 12, 1995, which insofar as appealable, denied plaintiffs’ motion to renew the order and judgment of the same court and Justice, entered August 5 and 30, 1994, respectively, dismissing the complaint as time-barred, unanimously affirmed, without costs.

In this action for damages arising out of personal injuries allegedly sustained by plaintiff when he was attacked by three unidentified men on the railroad platform waiting area in Mount Vernon, New York, the IAS Court properly dismissed the complaint as time-barred. It is undisputed that plaintiffs failed to commence their action against defendant within the applicable period of limitations. Contrary to plaintiffs’ contentions, there is no proof on the record that defendant agreed to waive its defense under the Statute of Limitations. Nor is defendant estopped from raising this defense by engaging plaintiffs in what appear to be preliminary settlement discussions through its insurance company (Kiernan v Long Is. R. R., 209 AD2d 588, appeal dismissed and lv denied 85 NY2d 934). Such action was not calculated to mislead plaintiffs, nor have plaintiffs demonstrated that they failed to commence the action timely in reliance thereon (supra). Concur — Sullivan, J. P., Milonas, Rubin, Tom and Mazzarelli, JJ.