Opinion
November 23, 1993
Appeal from the Supreme Court, Bronx County (Douglas McKeon, J.).
It is not disputed that this personal injury action is based on an accident which took place on December 6, 1988, and that it was commenced on July 26, 1990, more than one year and 90 days later (see, Public Authorities Law § 1212). Defendant's claim that the action is time-barred was properly preserved as an affirmative defense in the first responsive pleading and then asserted as dispositive on the instant motion (see, Connell v Hayden, 83 A.D.2d 30, 32). Plaintiff's claim that defendant should be equitably estopped from asserting the defense of the Statute of Limitations is bottomed on facts dehors the record (see, American Express Bank v Uniroyal, Inc., 164 A.D.2d 275, 277-278, lv denied 77 N.Y.2d 807), and raised for the first time on appeal (see, City of New York v Stack, 178 A.D.2d 355, lv denied 80 N.Y.2d 753), and we do not consider it.
We have considered the plaintiff's remaining arguments, and find them to be without merit.
Concur — Murphy, P.J., Carro, Ellerin and Nardelli, JJ.