IF THE STATUTE OF LIMITATIONS DEFENSE IS NOT RAISED BY A PARTY IT IS WAIVED AND CANNOT BE ASSERTED, SUA SPONTE, BY A JUDGE; IN ADDITION, A JUDGE CANNOT DECIDE A MOTION ON A GROUND NOT RAISED BY THE PARTIES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a judge, sua sponte, cannot raise the statute of limitations defense. If it is not raised by the parties, it is waived:

The statute of limitations is an affirmative defense that 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 … . “‘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, none of the defendants answered the complaint, and the record does not show that any defendant made a pre-answer motion that raised the statute of limitations … . Therefore, a statute of limitations defense was waived. Moreover, even if the defense was not waived, no defendant opposed the instant motion, and the issue of the statute of limitations was not raised on the motion. Thus, the Supreme Court improperly determined the motion on a ground not raised by the parties … . Associates First Capital Corp. v Roth, 2024 NY Slip Op 01789, Second Dept 4-4-24

Practice Point: The stature of limitations defense cannot be raised, sua sponte, by a judge. If it is not raised by a party it is waived.

Practice Point: A judge cannot not based a motion-decision on a ground not raised by the parties.