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STATUTE OF LIMITATIONS DEFENSE MAY BE RAISED FOR THE FIRST TIME IN AN ANSWER TO AN AMENDED COMPLAINT; RELATION-BACK DOCTRINE NOT APPLICABLE TO ORAL-CONTRACT ACTION WHERE ORIGINAL ACTION WAS BASED SOLELY ON A WRITTEN CONTRACT.

The Second Department, reversing Supreme Court determined defendant did not waive the statute of limitations defense not raised in the answer to the original complaint, but raised in the answer to the amended complaint. The court further concluded a subsequent action based upon an alleged oral agreement did not relate back to the original action based upon a written agreement and was therefore time-barred:

 

Generally, a defense based upon the statute of limitations is waived unless raised by pre-answer motion or in the defendant’s answer (see CPLR 3211[e]). A defendant, however, may assert a statute of limitations defense for the first time in an answer served in response to a plaintiff’s amended complaint … . Moreover, a party may amend its pleading once without leave of court, among other circumstances, within 20 days after service of that pleading (see CPLR 3025[a]). An amended answer, made as a matter of right pursuant to CPLR 3025(a), may include a statute of limitations defense previously omitted … . * * *

The relation-back doctrine permits a plaintiff to interpose a claim or cause of action which would otherwise be time-barred, where the allegations of the original complaint gave notice of the transactions or occurrences to be proven and the cause of action would have been timely interposed if asserted in the original complaint … . The relation-back doctrine is inapplicable where the original allegations did not provide the defendant notice of the need to defend against the allegations of the amended complaint … . Moezinia v Ashkenazi, 2016 NY Slip Op 01300, 2nd Dept 2-24-16

 

CIVIL PROCEDURE (STATUTE OF LIMITATIONS DEFENSE MAY BE RAISED FOR THE FIRST TIME IN AN ANSWER TO AN AMENDED COMPLAINT)/CIVIL PROCEDURE (RELATION-BACK DOCTRINE NOT APPLICABLE TO ORAL CONTRACT WHERE ORIGINAL COMPLAINT CONCERNED A WRITTEN CONTRACT)/STATUTE OF LIMITATIONS (DEFENSE MAY BE RAISED FOR THE FIRST TIME IN ANSWER TO AN AMENDED COMPLAINT)/RELATION-BACK DOCTRINE (RELATION-BACK DOCTRINE NOT APPLICABLE TO ORAL CONTRACT WHERE ORIGINAL COMPLAINT CONCERNED A WRITTEN CONTRACT)

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JUSTICES DISAGREE WHETHER STOLEN PROPERTY AND ASSAULT AND ROBBERY OFFENSES SHOULD... CONVERSION THEORY DOES NOT APPLY TO REAL ESTATE OR INTANGIBLE PROPERTY.