In McMillan v. Wal-Mart Stores, Inc. , the appellate division affirmed the dismissal with prejudice of a complaint filed one day after the two year statute of limitations had expired. Plaintiff had claimed the statute was equitably tolled due to ongoing settlement negotiations, however, the court noted that there was never any discussion about the statute of limitations, nor any communication stating any understanding that plaintiff would not be filing a complaint while the parties continued to negotiate. The Court held that an exchange of communications shortly before the statute of limitations runs cannot, without more, be converted into tolling or we would either abolish the statute of limitations or deter carriers from communicating about settlement before the statute runs.
