Statute of Limitations Defense in Article 78 Proceeding Waived Because Not Raised in Answer or Pre-Answer Motion to Dismiss

In reversing Supreme Court’s dismissal of an Article 78 proceeding as untimely, the Third Department determined the statute of limitations defense was waived because it was not raised in the answer or in a pre-answer motion to dismiss:

Petitioner contends that Supreme Court erred in granting respondent’s oral motion to dismiss the petition based upon statute of limitations grounds inasmuch as respondent  failed to timely raise this defense/objection in either its verified answer or a pre-answer motion to dismiss. We agree. It is well established that an aggrieved party must raise a statute of limitations defense/objection in either the answer or a pre-answer motion  to  dismiss  (see  CPLR  3211  [e]; 7804  [f];…). A pre-answer motion  to dismiss based  upon  a statute of limitations defense/objection necessarily “must  be  made  prior to the time in which to serve an  answer, and the failure to do  so will result in a waiver of the defense unless [thereafter] raised in the responsive pleading”… .  Matter of Kowalczyk v Village of Monticello, 515968, 3rd Dept 6-27-13