Montelione v. Greenburg Edgemont Union Free School District

175 A.D.2d 113, 572 N.Y.S.2d 17, 1991 N.Y. App. Div. LEXIS 9775

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1991
• Status: Published

Opinion

— In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Gurahian, J.), dated December 13, 1989, which granted defendant’s motion to dismiss the complaint on the ground that action is time barred.

Ordered that the order is affirmed, with costs.

On April 29, 1988, the injured plaintiff, then an 18-year-old high school student, tripped and was injured while helping his gym teacher move some tables. Although a notice of claim (see, General Municipal Law § 50-e) was timely served, service of a summons and complaint was not effectuated until August 14, 1989, some 17 days after expiration of the Statute of Limitations (see, General Municipal Law § 50-i). In support of their claim of estoppel, the. plaintiffs note that, in a letter acknowledging receipt of the notice of claim, the defendant made an obviously erroneous reference to receipt of a summons and complaint. Further, the defendant demanded a hearing pursuant to General Municipal Law § 50-h, and sent a letter to the plaintiffs’ attorney suggesting an "amicable resolution of this matter”. However, the plaintiffs have failed to demonstrate the existence of fraud, misrepresentation or deception which induced them to refrain from timely commencement of this action so as to estop the defendant from interposing the Statute of Limitations as a bar to this action (see, Simcuski v Saeli, 44 NY2d 442; Rains v Metropolitan Transp. Auth., 120 AD2d 509; see also, Simon v Capital Dist. Transp. Auth., 95 AD2d 902). Thompson, J. P., Kunzeman, Sullivan and Harwood, JJ., concur.