Kiernan v. Long Island R.R.

• Decision Date: 21 November 1994
• Citation: 619 N.Y.S.2d 723,209 A.D.2d 588
• Parties: Rita KIERNAN, Appellant, v. LONG ISLAND RAIL ROAD, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 723

619 N.Y.S.2d 723

209 A.D.2d 588

Rita KIERNAN, Appellant, v. LONG ISLAND RAIL ROAD, Respondent.

Supreme Court, Appellate Division Second Department.

Nov. 21, 1994.

Frank D. Dikranis, Long Beach, for appellant.

Curtis, Zaklukiewicz, Vasile, Devine & McElhenny, Merrick, for respondent.

Before MANGANO, P.J., and THOMPSON, COPERTINO and HART, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated April 16, 1993, which granted the defendant's motion to dismiss the complaint as barred by the Statute of Limitations.

ORDERED that the order is affirmed, with costs.

In considering a motion to dismiss a complaint when the Statute of Limitations has run, a court may estop a defendant from asserting that defense when the defendant has by its conduct induced a party to postpone bringing suit on a known cause of action (Cranesville Block Co. v. Niagara Mohawk Power Corp., 175 A.D.2d 444, 572 N.Y.S.2d 495). To establish entitlement to estoppel, the plaintiff must set forth evidence showing that she was induced by fraud, misrepresentation, or deception to refrain from commencing a timely action (Simcuski v. Saeli, 44 N.Y.2d 442, 406 N.Y.S.2d 259, 377 N.E.2d 713; Rains v. Metropolitan Transp. Auth., 120 A.D.2d 509, 501 N.Y.S.2d 709), or the plaintiff must prove that the defendant engaged in conduct which was "calculated to mislead * * * plaintiff", and that the plaintiff, in reliance thereon, failed to timely commence the action (Robinson v. City of New York, 24 A.D.2d 260, 263, 265 N.Y.S.2d 566).

It is well-settled law in New York that the mere fact that settlement negotiations have been ongoing between parties is insufficient to estop a party from asserting the Statute of Limitations as a defense (Cranesville Block Co. v. Niagara Mohawk Power Corp., supra; Marvel v. Capital Dist. Transp. Auth., 114 A.D.2d 612, 494 N.Y.S.2d 215; Procco v. Kennedy, 88 A.D.2d 761, 451 N.Y.S.2d 487). Settlement negotiations do not give rise to an estoppel, where, as here, there is no evidence that the defendants intended thereby to lull the plaintiff into inactivity until after the expiration of the Statute of Limitations (see, Terry v. Long Island R.R., 207 A.D.2d 881, 616 N.Y.S.2d 910; DeGori v. Long Island R.R., 202 A.D.2d 549, 610 N.Y.S.2d 815; see also, Montelione v. Greenburg Edgemont Union Free School Dist. of Scarsdale, 175 A.D.2d 113, ...