Martin v. Manhattan & Bronx Surface Transit Operating Authority

198 A.D.2d 160, 604 N.Y.S.2d 65, 1993 N.Y. App. Div. LEXIS 10988

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 23, 1993
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered October 27, 1992, which, inter alia, granted defendant’s motion to dismiss the complaint, unanimously affirmed, without costs.

It is not disputed that this personal injury action is based on an accident which took place on December 6, 1988, and that it was commenced on July 26, 1990, more than one year and 90 days later (see, Public Authorities Law § 1212 [2]). Defendant’s claim that the action is time-barred was properly preserved as an affirmative defense in the first responsive pleading and then asserted as dispositive on the instant motion (see, Connell v Hayden, 83 AD2d 30, 32). Plaintiff’s claim that defendant should be equitably estopped from asserting the defense of the Statute of Limitations is bottomed on facts dehors the record (see, American Express Bank v Uniroyal, Inc., 164 AD2d 275, 277-278, lv denied 77 NY2d 807), and raised for the first time on appeal (see, City of New York v Stack, 178 AD2d 355, lv denied 80 NY2d 753), and we do not consider it.

We have considered the plaintiffs remaining arguments, and find them to be without merit. Concur — Murphy, P. J., Carro, Ellerin and Nardelli, JJ.