| Solomon Holding Corp. v Golia |
| 2008 NY Slip Op 08274 [55 AD3d 507] |
| October 30, 2008 |
| Appellate Division, First Department |
| Solomon Holding Corp., Appellant, v Peter Golia et al.,Respondents, et al., Defendants. |
—[*1] Char & Herzberg LLP, New York (Edward M. Char of counsel), for respondents.
Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered August 21, 2007,which, in an action to foreclose a mortgage, denied plaintiff's motion for summary judgment andgranted defendants-respondents' cross motion to amend their answer so as to add the affirmativedefense of statute of limitations and, upon amendment, for summary judgment dismissing thecomplaint, unanimously affirmed, without costs.
On appeal, plaintiff does not argue that the statute of limitations had not run beforecommencement of the action, but only that defendants should not be permitted to invoke thestatute of limitations because they did not plead it in their answer and then waited 19 monthsbefore finally seeking to interpose it. Plaintiff, however, does not show, or even claim, prejudiceor surprise resulting directly from defendants' delay in asserting the statute of limitations. Absentsuch showing, defendants' cross motion to amend was properly granted (CPLR 3025 [b]; seeSeda v New York City Hous. Auth., 181 AD2d 469, 470 [1992], lv denied 80 NY2d759 [1992], citing, inter alia, Fahey v County of Ontario, 44 NY2d 934 [1978]).Concur—Tom, J.P., Nardelli, Sweeny, McGuire and DeGrasse, JJ. [See 2007 NYSlip Op 32472(U).]