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Medina v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 30, 2009

DAVID MEDINA, PLAINTIFF-APPELLANT,
v.
THE CITY OF NEW YORK, DEFENDANT-RESPONDENT.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered April 17, 2008, which dismissed plaintiff's complaint as barred by the statute of limitations, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Friedman, Moskowitz, Renwick, Freedman, JJ.

303240/07

The commencement of this action was untimely (General Municipal Law § 50-i). Plaintiff's objection that defendant's answer should be considered a nullity was effectively waived when he retained that responsive pleading for two months before moving to dismiss (see e.g. Rosenshein v Ernstoff, 176 AD2d 686 [1991]). He also failed to offer any evidence that defendant had induced him to delay bringing the action by misleading him into believing settlement negotiations were imminent. There are no grounds for estopping defendant from asserting the statute of limitations (see e.g. Dowdell v Greene County, 14 AD3d 750 [2005]; Dailey v Mazel Stores, 309 AD2d 661, 663-664 [2003]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090630

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