Medina v City of New York

Medina v City of New York 2009 NY Slip Op 05387 [63 AD3d 632] June 30, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 5, 2009

David Medina, Appellant,
v
City of New York, Respondent.

—[*1] Rawlins & Gibbs, LLP, New York (Earl A. Rawlins of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Sharyn Rootenberg of counsel), for 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.

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]). Concur—Gonzalez, P.J., Friedman, Moskowitz, Renwick and Freedman, JJ.