Opinion
May 5, 1997
Appeal from the Supreme Court, Queens County (Golar, J.).
Ordered that the appeal from the order dated December 13, 1995, is dismissed, as that order was superseded by the order dated February 13, 1996, made upon reargument; and it is further,
Ordered that the order dated February 13, 1996, is affirmed insofar as appealed from; and it is further,
Ordered that the respondent is awarded one bill of 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" ( Kiernan v. Long Is. R.R., 209 A.D.2d 588, 588-589). "To establish entitlement to estoppel, the plaintiff must set forth evidence showing that [he or] she was induced by fraud, misrepresentation, or deception to refrain from commencing a timely action * * * 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" ( Kiernan v Long Is. R.R., supra, at 589, quoting Robinson v. City of New York, 24 A.D.2d 260, 265; see also, DeGori v. Long Is. R.R., 202 A.D.2d 549). Because the plaintiff did not meet her burden, the Supreme Court properly dismissed the fourth cause of action in the amended complaint.
The plaintiff's remaining contentions are without merit.
Bracken, J.P., Thompson, Sullivan and Altman, JJ., concur.