Opinion
May 23, 1996
Appeal from the Supreme Court, New York County (William Davis, J.).
In this action for damages arising out of personal injuries allegedly sustained by plaintiff when he was attacked by three unidentified men on the railroad platform waiting area in Mount Vernon, New York, the IAS Court properly dismissed the complaint as time-barred. It is undisputed that plaintiffs failed to commence their action against defendant within the applicable period of limitations. Contrary to plaintiffs' contentions, there is no proof on the record that defendant agreed to waive its defense under the Statute of Limitations. Nor is defendant estopped from raising this defense by engaging plaintiffs in what appear to be preliminary settlement discussions through its insurance company ( Kiernan v. Long Is. R.R., 209 A.D.2d 588, appeal dismissed and lv denied 85 N.Y.2d 934). Such action was not calculated to mislead plaintiffs, nor have plaintiffs demonstrated that they failed to commence the action timely in reliance thereon ( supra).
Concur — Sullivan, J.P., Milonas, Rubin, Tom and Mazzarelli, JJ.