ALI v. MOSS (2006)

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Ambrosio, J.), dated December 19, 2005, which denied their motion pursuant to CPLR 3211 to dismiss the complaint, inter alia, as time barred, and granted the plaintiffs' cross motion, among other things, to deem the complaint timely filed.

ORDERED that the order is reversed, on the law, with costs, the motion to dismiss the complaint is granted, and the cross motion is denied.

 The plaintiffs admittedly failed to commence this action by filing a summons with notice or a summons and complaint within the relevant period of limitations (see Marino v. Proch, 258 A.D.2d 628, 685 N.Y.S.2d 761;  CPLR 214[5] ).   Further, the plaintiffs failed to establish any basis to estop the defendants from interposing a statute of limitations defense (see Zumpano v. Quinn, 6 N.Y.3d 666, 816 N.Y.S.2d 703, 849 N.E.2d 926;  Kiernan v. Long Island R.R., 209 A.D.2d 588, 619 N.Y.S.2d 723).   Thus, as the plaintiffs raised no other basis to sustain the action, and the courts, in general, have no inherent power to extend a period of limitations in the interest of justice, the complaint should have been dismissed as time barred (see Dioguardi v. Glassey, 5 A.D.3d 430, 772 N.Y.S.2d 604;  Marino v. Proch, supra;  CPLR 201).

In light of our determination, the parties' remaining contentions have been rendered academic.