Ashe v. Niagara Frontier Transportation Authority , 740 N.Y.S.2d 909 ( 2002 )

—Appeal from an order of Supreme Court, Erie County (Glownia, J.), entered February 2, 2001, which granted defendants’ motion and dismissed the complaint.

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 h[er] claim” (Procco v Kennedy, 88 AD2d 761, 761, affd 58 NY2d 804). Present—Pigott, Jr., P.J., Pine, Hayes, Kehoe and Gorski, JJ.