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Amendment of Reply to Add Statute of Limitations Defense Allowed

In affirming the grant of a motion to amend a reply to add the “statute of limitations” defense, the Second Department wrote:

“Leave to amend a pleading should be freely given (see CPLR 3025[b]), provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit” … . “A determination whether to grant such leave is within the Supreme Court’s broad discretion, and the exercise of that discretion will not be lightly disturbed” … . “Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side” … .The plaintiff waived its statute of limitations defense by failing to assert it as an affirmative defense in its initial reply to the appellants’ counterclaims (see CPLR 3211[e]). However, defenses waived under CPLR 3211(e) can nevertheless be interposed by leave of court pursuant to CPLR 3025(b) so long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay … . Aurora Loan Services, LLC v Dimura, et al, 2013 NY Slip Op 01797, 2012-04739,Index No 2455/09, 2nd Dept. 3-20-13

 

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Alternative Holding in Prior Appeal Did Not Have Preclusive Effect Court’s Sua Sponte Dismissal of Complaint Reversed