You are here: / / ALTHOUGH THE MOTION TO DISMISS ON STATUTE OF LIMITATIONS GROUNDS WAS NOT...

ALTHOUGH THE MOTION TO DISMISS ON STATUTE OF LIMITATIONS GROUNDS WAS NOT TIMELY, THE ASSERTION OF THE DEFENSE IN THE REPLY TO THE COUNTERCLAIM WAS TIMELY; THE DEFENSE CAN BE RAISED IN A SUBSEQUENT SUMMARY JUDGMENT MOTION (FIRST DEPT). ​

The First Department noted that the statute of limitations affirmative defense was timely served in a reply to a counterclaim

[Defendant] NYCTA did not waive its affirmative defense under CPLR 3211(a)(5) because a defense based upon the statute of limitations is waived only if it is neither asserted in a responsive pleading or in a timely motion … . Here the affirmative defense was timely asserted in NYCTA’s reply to the counterclaim. The motion to dismiss under CPLR 3211(a)(5), however, was not timely made, as required under CPLR 3211(e) … . … We note that NYCTA may pursue relief on its statute of limitations defense by way of a summary judgment motion in the normal course of the litigation … . Han v New York City Tr. Auth., 2022 NY Slip Op 01737, First Dept 3-15-22​

Practice Point: Even if it is too late to move to dismiss on statute-of-limitations grounds, if the defense has been timely asserted, it can be the basis of a subsequent summary judgment motion.

 

You might also like
Ambiguity of Contract Is a Question of Fact Where Credibility of Extrinsic Evidence Must Be Assessed
PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT). ​
HUMAN RESOURCES ADMINISTRATION SECURITY DEPOSIT VOUCHERS MUST BE ACCEPTED IN LIEU OF CASH DEPOSITS; TO REFUSE TO ACCEPT THE VOUCHERS VIOLATES THE NYC HUMAN RIGHTS LAW; THE VOUCHER PROGRAM DOES NOT VIOLATE THE SOCIAL SERVICES LAW OR THE URSTADT LAW (FIRST DEPT).
THE JURY’S FINDING THAT THE SCAFFOLD PROVIDED ADEQUATE PROTECTION FOR THE PLAINTIFF IN THIS SCAFFOLD-FALL CASE WAS AGAINST THE WEIGHT OF THE EVIDENCE; NEW TRIAL REQUIRED (FIRST DEPT).
PLAINTIFF TESTIFIED HE WAS STANDING AT THE TOP OF AN UNSECURED A-FRAME LADDER WHEN IT MOVED AND HE FELL; THE FACT THAT THERE WERE NO WITNESSES DID NOT PRECLUDE SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). ​
STATEMENT SHOULD NOT HAVE BEEN ADMITTED AS A PROMPT OUTCRY, CONVICTION REVERSED.
PASSING REFERENCES TO DEFENDANTS’ INSURANCE COVERAGE IN THE TRAFFIC ACCIDENT CASE DID NOT WARRANT SETTING ASIDE PLAINTIFF’S VERDICT (FIRST DEPT).
Bringing a Cause of Action Under the Whistleblower Statute Alleging Retaliation for Reporting Misconduct Does Not Bar Claims Arising from the Misconduct Itself (Here Claims of Sexual Harassment)

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

PLAINTIFF WAS WALKING UP AN EARTHEN RAMP WHEN HE WAS STRUCK BY AN EXCAVATOR... ALTHOUGH PLAINTIFF, WHO WAS INJURED WHILE REPAIRING AN ESCALATOR, COULD NOT...