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Ashe v. Niagara Frontier Transportation Authority3/15/2002
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
MEMORANDUM AND ORDER
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 NY2d 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 claim" (Procco v Kennedy, 88 AD2d 761, 761, affd 58 NY2d 804).
Entered: May 3, 2002
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