Opinion
CA 01-02328
May 3, 2002.
Appeal from an order of Supreme Court, Erie County (Glownia, J.), entered February 2, 2001, which granted defendants' motion and dismissed the complaint.
SULLIVAN OLIVERIO GIOIA LLP, BUFFALO (KEVIN M. CARTER OF COUNSEL), FOR PLAINTIFF-APPELLANT.
VICKY-MARIE BRUNETTE ANTHONY, BUFFALO, FOR DEFENDANTS-RESPONDENTS.
PRESENT: PIGOTT, JR., P.J., PINE, HAYES, KEHOE, AND GORSKI, JJ.
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Supreme Court properly granted defendants' motion to dismiss the complaint as time-barred. Contrary to plaintiff's contention, defendants are not estopped from asserting the statute of limitations as a defense where, as here, there is no proof that plaintiff "was induced by fraud, misrepresentations or deception to refrain from filing a timely action" ( Simcuski v. Saeli, 44 N.Y.2d 442, 449). Although the parties had numerous discussions concerning whether defendants would pay plaintiff no-fault benefits, they had only preliminarily discussed settlement of the personal injury claim, and plaintiff had not yet made a demand for settlement. Thus, it cannot be said that defendants "improperly lull[ed the] plaintiff into failing to bring [her] claim" ( Procco v. Kennedy, 88 A.D.2d 761, 761, affd 58 N.Y.2d 804).