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Defendant Did Not Waive the Statute of Limitations Defense, Pled In Its Answer, by Failing to Assert It in a Pre-Answer Motion to Dismiss—Although Defendant’s Post-Answer Motion Was Ostensibly Brought Pursuant to CPLR 3211 Instead of 3212, the Procedural Irregularity Should Have Been Excused under CPLR 2001

The Second Department explained there is no requirement that a statute of limitations defense be raised solely in a pre-answer motion to dismiss.  The defense may be asserted in the answer, and subsequently raised in a summary judgment motion or at trial. Although defendant’s post-answer motion was ostensibly brought pursuant to CPLR 3211 instead of 3212, the procedural irregularity should have been excused under CPLR 2001:

CPLR 3211(a) permits a defendant who wishes to raise a defense based on the statute of limitations to do so by way of a motion to dismiss. That section provides, in relevant part, that “[a] party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that . . . the cause of action may not be maintained because of [the] statute of limitations” (CPLR 3211[a][5]). CPLR 3211(e) provides that the defendant may make the motion to dismiss before its answer is required to be served, or may include the defense in its answer and seek relief later. When the defendant does neither, the defense is waived.

“At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a) . . . . Any objection or defense based upon a ground set forth in paragraph[ ] five . . . of subdivision (a) is waived unless raised either by such motion or in the responsive pleading” (CPLR 3211[e]).

Contrary to the Supreme Court’s determination, a defendant who wishes to assert the statute of limitations as a defense is not limited to asserting it by way of a pre-answer motion. The defendant may instead choose to raise that defense in its answer, and either move on that ground later in a motion for summary judgment, or wait until trial to have it determined … .

Here, the defendant did not make a pre-answer motion to dismiss the complaint, but raised the statute of limitations as an affirmative defense in its answer. Then, after the note of issue was filed, the defendant moved to dismiss the complaint on that ground. Although the defendant denominated its motion as a motion pursuant to CPLR 3211(a) to dismiss the complaint, rather than as a motion pursuant to CPLR 3212 for summary judgment dismissing the complaint, that procedural irregularity should have been excused under CPLR 2001, upon proper notice to the parties … . Wan Li Situ v MTA Bus Co., 2015 NY Slip Op 06130, 2nd Dept 7-15-15

 

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