You are here: / / Defendant Did Not Waive the Statute of Limitations Defense, Pled In Its...

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 Instead of 3212, the Procedural Irregularity Should Have Been Excused under CPLR 2001

The Second Department explained there is no requirement that a statute of limitations defense be raised solely in a pre-answer motion to dismiss.  The defense may be asserted in the answer, and subsequently raised in a summary judgment motion or at trial. Although defendant’s post-answer motion was ostensibly brought pursuant to CPLR 3211 instead of 3212, the procedural irregularity should have been excused under CPLR 2001:

CPLR 3211(a) permits a defendant who wishes to raise a defense based on the statute of limitations to do so by way of a motion to dismiss. That section provides, in relevant part, that “[a] party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that . . . the cause of action may not be maintained because of [the] statute of limitations” (CPLR 3211[a][5]). CPLR 3211(e) provides that the defendant may make the motion to dismiss before its answer is required to be served, or may include the defense in its answer and seek relief later. When the defendant does neither, the defense is waived.

“At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a) . . . . Any objection or defense based upon a ground set forth in paragraph[ ] five . . . of subdivision (a) is waived unless raised either by such motion or in the responsive pleading” (CPLR 3211[e]).

Contrary to the Supreme Court’s determination, a defendant who wishes to assert the statute of limitations as a defense is not limited to asserting it by way of a pre-answer motion. The defendant may instead choose to raise that defense in its answer, and either move on that ground later in a motion for summary judgment, or wait until trial to have it determined … .

Here, the defendant did not make a pre-answer motion to dismiss the complaint, but raised the statute of limitations as an affirmative defense in its answer. Then, after the note of issue was filed, the defendant moved to dismiss the complaint on that ground. Although the defendant denominated its motion as a motion pursuant to CPLR 3211(a) to dismiss the complaint, rather than as a motion pursuant to CPLR 3212 for summary judgment dismissing the complaint, that procedural irregularity should have been excused under CPLR 2001, upon proper notice to the parties … . Wan Li Situ v MTA Bus Co., 2015 NY Slip Op 06130, 2nd Dept 7-15-15

 

You might also like
Failure to Appear at Deposition Was a Material Breach of a Condition Precedent to the Promise to Indemnify
HOMEOWNERS ASSOCIATION’S EXERCISE OF RIGHT OF FIRST REFUSAL PROPER UNDER THE BUSINESS JUDGMENT RULE.
THE EXCEPTION TO THE FAULTY WORKMANSHIP EXCLUSION IN THE FIRE INSURANCE POLICY APPLIED TO PRESERVE COVERAGE FOR ENSUING LOSS (SECOND DEPT).
IN A COMPLEX MARITAL-PROPERTY, MAINTENANCE AND CHILD-SUPPORT ANALYSIS TOO DETAILED AND COMPREHENSIVE TO SUMMARIZE HERE, THE COURT NOTED THAT, ABSENT A VOLUNTARY AGREEMENT, A PARENT MAY NOT BE DIRECTED TO SUPPORT A CHILD AFTER THE AGE OF 21 (SECOND DEPT).
PLAINTIFF WAS NOT ENGAGED IN CONSTRUCTION WORK OR IN A CONSTRUCTION AREA WHEN HE WAS INJURED, HE WAS BRINGING IN SUPPLIES WHICH WERE BEING STOCKPILED AND WERE NOT FOR IMMEDIATE USE, THEREFORE THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT).
Effect of Ambiguity in Easement Explained
THE PROOF REQUIREMENTS FOR DEPRAVED INDIFFERENCE MURDER CHANGED WHEN THE COURT OF APPEALS DECIDED PEOPLE V PAYNE, BEFORE DEFENDANT’S CONVICTION BECAME FINAL, SUPREME COURT SHOULD HAVE HEARD DEFENDANT’S MOTION TO VACATE THE CONVICTION AND SHOULD HAVE REVERSED THE DEPRAVED INDIFFERENCE MURDER CONVICTION AND DISMISSED THE COUNT (SECOND DEPT).
THE DRIVER OF THE STATE DUMP TRUCK WHO SIDESWIPED PLAINTIFF’S MOPED IN THE BICYCLE LANE WHILE LOOKING FOR DEAD DEER DID NOT ACT RECKLESSLY WITHIN THE MEANING OF THE VEHICLE AND TRAFFIC LAW (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Defendant Did Not Waive the Statute of Limitations Defense, Pled In Its Answer,... Second Voluntary Discontinuance Operated as an Adjudication on the Merits Requiring...