Webb v. Consolidated Rail Corp. , 166 A.D.2d 285 ( 1990 )

Order of the Supreme Court, New York County (Karla Moskowitz, J.), entered on or about February 1, 1990, which, inter alia, denied defendant’s motion to dismiss the complaint for failure to comply with the Statute of Limitations, unanimously affirmed, without costs.

Defendant is estopped from asserting the expiration of the Statute of Limitations as a defense where it previously argued to the Pennsylvania courts, subsequent to the expiration of the statute, that they should dismiss plaintiffs Pennsylvania action on the grounds that plaintiff had a proper forum in New York. (Houghton v Thomas, 220 App Div 415, affd 248 NY 523.) Defendant’s contention that its prior argument was made in the context of its amenability to service in New York and is therefore not inconsistent with its present argument that suit is untimely in New York takes an unreasonably narrow view of the likely impact of its arguments on the Pennsylvania forum, which, under the circumstances herein, must be presumed to have relied on defendant’s allegations that plaintiff could bring her action in New York in dismissing the complaint.

In view of this holding, it is unnecessary to reach the parties’ remaining contentions. Concur—Kupferman, J. P., Ross, Carro, Asch and Ellerin, JJ.