Nowacki v. Becker

• Decision Date: 19 March 2010
• Citation: 897 N.Y.S.2d 560,71 A.D.3d 1496
• Parties: Hanna NOWACKI, Plaintiff-Appellant, v. Dean E. BECKER, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 560

71 A.D.3d 1496

Hanna NOWACKI, Plaintiff-Appellant,

v.Dean E. BECKER, Defendant-Respondent.

Supreme Court, Appellate Division, Fourth Department, New York.

March 19, 2010.

Michael W. Rickard, II, Williamsville, for Plaintiff-Appellant.

Smith, Murphy & Schoepperle, LLP, Buffalo (Dennis P. Mescall of Counsel), for Defendant-Respondent.

PRESENT: CENTRA, J.P., FAHEY, CARNI, GREEN AND PINE, JJ.

MEMORANDUM:

Plaintiff commenced this personal injury actionand, several months after answering the complaint, defendant movedpursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground that the action was time-barred. We agree with plaintiff that defendant's motion was untimely because it was not made "before service of the responsive pleading [was] required" (CPLR 3211[e]; see Bennett v. Hucke, 64 A.D.3d 529, 530, 881 N.Y.S.2d 335; Bowes v. Healy, 40 A.D.3d 566, 833 N.Y.S.2d 400; Hanover Ins. Co. v. Finnerty, 225 A.D.2d 1054, 1055, 639 N.Y.S.2d 433). Nevertheless, we conclude that the parties, by their submission of affidavits and documentary evidence concerning the timeliness of the action, "clearly indicat[ed] that they were 'deliberately charting a summary judgment course' " ( Mihlovan v. Grozavu, 72 N.Y.2d 506, 508, 534 N.Y.S.2d 656, 531 N.E.2d 288; see Kavoukian v. Kaletta, 294 A.D.2d 646, 646-647, 742 N.Y.S.2d 157; Kodack v. Pratt, 151 A.D.2d 551, 552, 542 N.Y.S.2d 326). "Under these circumstances, although the parties are entitled to notice that the motion will be accorded summary judgment treatment ..., we find such notice unnecessary in this matter since our review of the record indicates that the parties 'laid bare' their proof" ( Kavoukian, 294 A.D.2d at 647, 742 N.Y.S.2d 157). We thus consider the motion to be one for summary judgment dismissing the complaint, and we affirm the order granting defendant's motion.

We conclude that defendant met his initial burden by establishing that the applicable three-year statute of limitations had run and thus that the action is time-barred ( see Garcia v. Peterson, 32 A.D.3d 992, 820 N.Y.S.2d 901), and plaintiff failed to raise an issue of fact to defeat the motion ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Although plaintiff contended that defendant should be equitably estopped from relying on the statute of limitations defense ( see generally Zumpano v. Quinn, 6 N.Y.3d 666, 673, 816 N.Y.S.2d 703, 849 N.E.2d 926; Simcuski v. Saeli, 44 N.Y.2d 442, 448-449, 406 N.Y.S.2d 259, 377 N.E.2d 713), plaintiff failed to raise an issue of fact whether defendant engaged in any affirmative misconduct, i.e., fraud, misrepresentation, or deception, to induce her to refrain from filing a timely action ( see Garcia, 32 A.D.3d at 993, 820 N.Y.S.2d 901; see generally Simcuski, 44 N.Y.2d at 448-449, 406 N.Y.S.2d 259, 377 N.E.2d 713). In support of her contention, plaintiff alleges that defendant's insurer agreed to extend the statute of limitations during the period of its investigation and possible settlement of the claim. Plaintiff, however, failed to show that defendant's insurer in fact investigated the claim or that there were any settlement negotiations from June 2004 until the statute of limitations had expired, more than a year and a half later ( see Murphy v. Wegman's Food Mkts., 140 A.D.2d 973, 973-974, 529 N.Y.S.2d 648, lv. denied 72 N.Y.2d 808, 534 N.Y.S.2d 666, 531 N.E.2d 298). It thus cannot be said that plaintiff reasonably relied on any misrepresentation by defendant's insurer,...