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AFFIRMATIVE DEFENSE WHICH ARISES FROM THE ACTION BROUGHT IS NOT TIME-BARRED (SECOND DEPT).

The Second Department determined an affirmative defense was not time-barred. Plaintiffs alleged a local law was not properly enacted and was therefore invalid. Defendants asserted in their answer that the law was properly enacted a valid as an affirmative defense:

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… [T]he Supreme Court erred when it, in effect, dismissed the defendants’ affirmative defense. “[T]he statute of limitations governs the commencement of an action, not the assertion of a defense” (… see CPLR 201, 217). If a defense “arose from the transactions, occurrences, or series of transactions or occurrences, upon which a claim asserted in the complaint depends, it is not barred to the extent of the demand in the complaint notwithstanding that it was barred at the time the claims asserted in the complaint were interposed” (CPLR 203[d] …) . * * *

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… [T]he defendants’ answer does not seek any affirmative relief. Rather, it raises a defense that is “predicated on [an] act or fact growing out of the matter constituting the cause or ground of the action brought” by the plaintiffs … . In other words, the assertion that the Local Law was not validly enacted in accordance with the applicable referendum procedures specified in state and local law “arises from, and directly relates to” the plaintiffs’ claim that the Local Law was, in fact, enacted in accordance with the applicable referendum procedures and that they were therefore entitled to a declaration that the Local Law was valid … . Accordingly, the court erred when it, in effect, dismissed the affirmative defense contained in the defendants’ answer alleging that the Local Law was not validly enacted on the ground that the affirmative defense was time-barred (see CPLR 203[d]). Since the merits of the defendants’ affirmative defense were not reached by the court, it should not have awarded judgment in favor of the plaintiffs. Matter of Jenkins v Astorino, 2017 NY Slip Op 07730, Second Dept 11-8-17

 

CIVIL PROCEDURE (STATUTE OF LIMITATIONS, AFFIRMATIVE DEFENSE WHICH ARISES FROM THE ACTION BROUGHT IS NOT TIME-BARRED (SECOND DEPT))/AFFIRMATIVE DEFENSES  (STATUTE OF LIMITATIONS, AFFIRMATIVE DEFENSE WHICH ARISES FROM THE ACTION BROUGHT IS NOT TIME-BARRED (SECOND DEPT))/STATUTE OF LIMITATIONS (AFFIRMATIVE DEFENSE WHICH ARISES FROM THE ACTION BROUGHT IS NOT TIME-BARRED (SECOND DEPT))/CPLR 203 (d) (STATUTE OF LIMITATIONS, AFFIRMATIVE DEFENSE WHICH ARISES FROM THE ACTION BROUGHT IS NOT TIME-BARRED (SECOND DEPT))

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SUPREME COURT SHOULD NOT HAVE STAYED THE ENFORCEMENT OF PLAINTIFFS’ JUDGMENT... DUE DILIGENCE STANDARD FOR SERVICE OF PROCESS PURSUANT TO CPLR 308 (4) WAS MET...