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JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STATUTE OF LIMITATIONS DEFENSE, IF THE DEFENSE IS NOT RAISED IN THE PLEADINGS IT IS WAIVED, JUDGE CANNOT TAKE JUDICIAL NOTICE OF IT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, raised the statute of limitations defense in this foreclosure action:

Supreme Court erred in sua sponte raising the affirmative defense of the statute of limitations and directing the dismissal of the complaint on that ground. The statute of limitations is an affirmative defense which is waived by a party unless it is raised either in a responsive pleading, or by motion prior to the submission of a responsive pleading (see CPLR 3211[e]…). “A court may not take judicial notice,’ sua sponte, of the applicability of a statute of limitations if that defense has not been raised” … . Here, the defendant neither answered the complaint nor submitted a pre-answer motion which raised the statute of limitations defense. 352 Legion Funding Assoc. v 348 Riverdale, LLC, 2018 NY Slip Op 05662, Second Dept 8-8-18

CIVIL PROCEDURE (STATUTE OF LIMITATIONS, JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STATUTE OF LIMITATIONS DEFENSE, IF THE DEFENSE IS NOT RAISED IN THE PLEADINGS IT IS WAIVED, JUDGE CANNOT TAKE JUDICIAL NOTICE OF IT (SECOND DEPT))/STATUTE OF LIMITATIONS ( JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STATUTE OF LIMITATIONS DEFENSE, IF THE DEFENSE IS NOT RAISED IN THE PLEADINGS IT IS WAIVED, JUDGE CANNOT TAKE JUDICIAL NOTICE OF IT (SECOND DEPT))/JUDGES (SUA SPONTE, JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STATUTE OF LIMITATIONS DEFENSE, IF THE DEFENSE IS NOT RAISED IN THE PLEADINGS IT IS WAIVED, JUDGE CANNOT TAKE JUDICIAL NOTICE OF IT (SECOND DEPT))/FORECLOSURE (STATUTE OF LIMITATIONS, JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STATUTE OF LIMITATIONS DEFENSE, IF THE DEFENSE IS NOT RAISED IN THE PLEADINGS IT IS WAIVED, JUDGE CANNOT TAKE JUDICIAL NOTICE OF IT (SECOND DEPT))

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