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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(a)(5), the Parties Laid Bare Their Proof and Supreme Court Properly Treated the Motion as One for Summary Judgment Pursuant to CPLR 3212 Seeking Dismissal of the Complaint as Time-Barred

The Second Department determined defendant did not waive its statute of limitations defense, asserted in its answer, by not making a pre-answer motion to dismiss. Although defendant’s subsequent motion was ostensibly brought pursuant to CPLR 3211(a)(5), the parties laid bare their proof. Therefore Supreme Court properly treated the motion as one for summary judgment pursuant to CPLR 3212, seeking to dismiss the complaint as time-barred:

Initially, contrary to the plaintiff’s contention, the defendant did not waive its statute of limitations defense, asserted in its answer, by failing to make a pre-answer motion to dismiss … . Rather, a statute of limitations defense may be asserted after joinder of issue in a motion for summary judgment pursuant to CPLR 3212 … . Although the defendant’s motion was made pursuant to 3211(a)(5), the parties clearly charted a summary judgment course by submitting extensive documentary evidence and factual affidavits laying bare their proof … . Thus, the defendant’s motion is properly treated as a motion for summary judgment dismissing the complaint as time-barred … . Meredith v Siben & Siben, LLP, 2015 NY Slip Op 06120, 2nd Dept 7-15-15

 

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