The Second Department, reversing Supreme Court, determined the County’s motion to amend its answer to assert a statute of limitations defense, six years after the initial answer was served, should have been denied:
The County waived a defense based on the statute of limitations by not raising that defense in its answer … . Nevertheless, defenses waived under CPLR 3211(e) can be interposed in an answer amended by leave of the court pursuant to CPLR 3025(b) … . ” In the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or 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'” … . ” In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated [and] whether a reasonable excuse for the delay was offered'” … . ” [W]here the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent and cautious'” … .
We agree with the plaintiffs that the Supreme Court improvidently exercised its discretion in granting the County’s motion for leave to amend its answer to assert the statute of limitations as a defense and for summary judgment dismissing the complaint as time-barred … . The County’s motion was not made until approximately six years after service of its answer, after the parties had completed discovery, and after the note of issue had been filed. Under these circumstances, the plaintiffs have suffered significant prejudice from the County’s delay in asserting the statute of limitations as a defense … . Civil Serv. Empls. Assn. v County of Nassau, 2016 NY Slip Op 08038, 2nd Dept 11-30-16
CIVIL PROCEDURE (MOTION TO AMEND ANSWER TO ASSERT STATUTE OF LIMITATIONS DEFENSE, MADE SIX YEARS AFTER INITIAL ANSWER WAS SERVED, SHOULD HAVE BEEN DENIED)/ANSWER, MOTION TO AMEND MOTION TO AMEND ANSWER TO ASSERT STATUTE OF LIMITATIONS DEFENSE, MADE SIX YEARS AFTER INITIAL ANSWER WAS SERVED, SHOULD HAVE BEEN DENIED)/STATUTE OF LIMITATIONS (MOTION TO AMEND ANSWER TO ASSERT STATUTE OF LIMITATIONS DEFENSE, MADE SIX YEARS AFTER INITIAL ANSWER WAS SERVED, SHOULD HAVE BEEN DENIED)