Opinion
September 26, 1994
Appeal from the Supreme Court, Suffolk County (Oshrin, J.).
Ordered that the order is reversed, on the law, with costs, and the complaint is dismissed.
It is well established that an agreement to extend the Statute of Limitations must be in writing or made in open court in order to bind the parties thereto (see, CPLR 2104; Matter of Pherbo Realty Corp. v. Board of Assessors, 104 A.D.2d 1037, 1038; Shanahan v. Shanahan, 92 A.D.2d 566, 568). There is no such writing or formal declaration in this case evidencing the defendants' intent to extend or waive the Statute of Limitations.
Moreover, a defendant may be estopped from pleading the Statute of Limitations only where the plaintiff was induced by fraud, misrepresentations, or deception to refrain from filing a timely action (see, Simcuski v. Saeli, 44 N.Y.2d 442; Arbutina v Bahuleyan, 75 A.D.2d 84, 86). The instant record establishes that defendants' claims adjuster maintained conventional communication with the plaintiff's counsel, and requested proof of liability and damages. In addition, he indicated that he would be willing to discuss settlement after the plaintiff's surgery — which was allegedly scheduled for December 1990, by which time the Statute of Limitations would have run. Such inquiries and allusions to possible future settlement negotiations do not give rise to an estoppel, where, as here, there is no evidence that the defendants intended thereby to lull the plaintiff into inactivity until after the expiration of the Statute of Limitations (see, DeGori v. Long Is. R.R., 202 A.D.2d 549; see also, e.g., Montelione v. Greenburg Edgemont Union Free School Dist., 175 A.D.2d 113; Murphy v. Wegman's Food Mkts., 140 A.D.2d 973; Procco v Kennedy, 88 A.D.2d 761, affd 58 N.Y.2d 804; Brown v. Davis, 88 A.D.2d 702; Van Hoesen v. Pennsylvania Millers Mut. Ins. Co., 86 A.D.2d 733). Mangano, P.J., Bracken, Santucci and Friedmann, JJ., concur.