| Horst v Brown |
| 2010 NY Slip Op 02836 [72 AD3d 434] |
| April 6, 2010 |
| Appellate Division, First Department |
| Patricia Horst, Appellant, v Owen Lloyd Brown,Respondent. |
—[*1] Owen Lloyd Brown, respondent pro se.
Order, Supreme Court, New York County (Louis B. York, J.), entered October 16, 2007,which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for summaryjudgment and dismissed certain of her claims on the ground of statute of limitations, reversed, onthe law, without costs, the dismissed claims reinstated, plaintiff granted summary judgment as toliability on those claims, and the matter remanded for a trial as to damages.
CPLR 3211 (e) explicitly provides that an objection or defense based on the statute oflimitations is waived unless raised in a responsive pleading or in a pre-answer motion to dismiss.Defendant failed to do either, and thus waived this defense (see Buckeye Retirement Co., L.L.C., Ltd. v Lee, 41 AD3d 183[2007] [statute of limitations defense waived unless raised by aggrieved party]).
As defendant waived the affirmative defense of statute of limitations, Supreme Court erredin its sua sponte consideration of that defense (see Paladino v Time Warner Cable of N.Y. City, 16 AD3d 646,647 [2005] ["court may not take judicial notice, sua sponte, of the applicability of a statute oflimitations if that defense has not been raised"]).
While "courts generally allow pro se litigants some leeway in the presentation of their case"(Stoves & Stones v Rubens, 237 AD2d 280 [1997]), in this particular case it was error totreat defendant's opposition to plaintiff's motion for summary judgment on damages as either amotion to amend defendant's answer, or a cross motion for summary judgment based on thestatute of limitations. "A motion for summary judgment 'on one claim or defense does notprovide a basis for searching the record and granting summary judgment on an unrelated claimor defense' " (Baseball Off. of Commr. v Marsh & McLennan, 295 AD2d 73, 82 [2002],quoting Sadkin v Raskin & Rappoport, 271 AD2d 272, 273 [2000]).Concur—Saxe, McGuire and Acosta, JJ.
Gonzalez, P.J., and RomÁn, J., dissent in part in a memorandum by RomÁn, J.,as follows: Well-settled law mandates an outcome, for the most part different from that whichthe majority holds and therefore, I dissent.[*2]
From February 3, 1992 through July 23, 1999, plaintiffmade a series of personal loans to the defendant. Some of the loans were evidenced bypromissory notes, others by checks. Notably, at his deposition, and in his affidavit in oppositionto plaintiff's motion, defendant conceded that he did in fact borrow all the money alleged byplaintiff. A review of the record shows that with the exception of one promissory note, datedJuly 21, 1992, there is no indication as to when defendant was obligated to repay plaintiff themoney borrowed or when, if at all, plaintiff demanded payment of the loans. The promissorynote dated July 21, 1992, however, states that defendant agreed to repay a loan totaling $16,200within 60 months of the note's execution.
Plaintiff moved for summary judgment alleging that inasmuch as defendant admittedborrowing money from the plaintiff as well as his failure to repay the debt, plaintiff was entitledto summary judgment. Defendant opposed plaintiff's motion arguing that all but one of the loansmade to him by the plaintiff were unenforceable as time-barred. Defendant conceded thatplaintiff's loan of $1,950, made on July 18 and 23, 1999, evidenced by a promissory note datedJuly 23, 1999, was not time-barred. The motion court, acknowledging that defendant had notraised the statute of limitations defense in his answer, nevertheless found that this defense barredthe majority of plaintiff's claims, with the exception of the loan made July 1999. In the absenceof any motion by the defendant, the court directed judgment in defendant's favor, with theexception of the loan made to defendant on July 18 and 23, 1999, in the amount of $1,950, as towhich it directed judgment in plaintiff's favor. Plaintiff appeals, averring that the motion courterred in allowing defendant to interpose a statute of limitations defense, a defense defendantnever asserted in his answer nor in a pre-answer motion to dismiss. For the reasons that followhereinafter, I believe that the law dictates a modification of the motion court's decision, ratherthan, as concluded by the majority, almost wholesale reversal of the same.
Generally, when a defendant fails to plead the statute of limitations as a defense in his or heranswer or fails to move for dismissal on that ground, via a pre-answer motion, the defense isordinarily waived (see Dougherty v City of Rye, 63 NY2d 989, 991-992 [1984]; Fade v Pugliani/Fade, 8 AD3d612, 614 [2004]). However, when a defendant fails to plead an affirmative defense, asrequired by CPLR 3211 (e) and 3018 (b), but nevertheless asserts that defense in connection witha motion for summary judgment, the waiver is said to be retracted and the court can grant, whenthe defendant is the movant, or deny, when the defendant is the opponent, summary judgmentbased upon the unpleaded affirmative defense (see Lerwick v Kelsey, 24 AD3d 918, 919-920 [2005]; Allen vMatthews, 266 AD2d 782, 784 [1999]; Adsit v Quantum Chem. Corp., 199 AD2d899 [1993]). The threshold inquiry is whether in considering the unpleaded defense, theopponent of the defense is prejudiced thereby (see BMX Worldwide v Coppola N.Y.C.,287 AD2d 383 [2001]; Allen v Matthews, 266 AD2d 782, 784 [1999]; Seaboard Sur.Co. v Nigro Bros., 222 AD2d 574 [1995]; Rogoff v San Juan Racing Assn., 77AD2d 831 [1980], affd 54 NY2d 883 [1981]). Such prejudice, however, is amelioratedwhen the defense was previously raised on a prior motion or during discovery (id.), orwhen the opponent of the motion, where defendant seeks summary judgment based upon saiddefense, is given an opportunity to fully respond to the motion for summary judgment (Sheils v County of Fulton, 14 AD3d919 [2005], lv denied 4 NY3d 711 [2005]; Kirilescu v American Home Prods.Corp., 278 AD2d 457 [2000], lv denied 96 NY2d 933 [2001]; McSorley v PhilipMorris, Inc., 170 AD2d 440 [1991], appeal dismissed 77 NY2d 990 [1991];International Fid. Ins. Co. v Robb, 159 AD2d 687 [1990]).
In this case, the motion court properly considered defendant's statute of limitations [*3]defense proffered for the first time in opposition to plaintiff'smotion for summary judgment (Allen at 784). In its decision, the motion court noted thatdefendant had "vigorously asserted such a defense" in his postanswer submissions, i.e., inopposition to plaintiff's motion for summary judgment. Additionally, a review of the recordshows that plaintiff, who had ample opportunity to address the statute of limitations defense inreply to defendant's opposition to her motion for summary judgment, never alleged that she wassurprised or actually prejudiced as a result of defendant's newly-raised defense. Accordingly,nothing precluded the motion court from considering the defense. The majority simply ignoresthe legion of cases, which create an exception to the well-settled rule related to affirmativedefenses, waiver and motions for summary judgment.
The motion court thus erred not in procedurally awarding defendant relief but insubstantively concluding, on this record, that all but one of plaintiff's claims are in facttime-barred.
When a court is deciding a motion for summary judgment, it can search the record and, evenin the absence of a cross motion, may grant summary judgment to a nonmoving party (CPLR3212 [b]; Dunham v Hilco Constr. Co., 89 NY2d 425 [1996]). Furthermore, a cause ofaction for breach of contract must be commenced within six years (CPLR 213 [2]). The cause ofaction accrues at the time of the breach (John J. Kassner & Co. v City of New York, 46NY2d 544 [1979]). When the cause of action is one to recover a sum of money owed pursuant tocontract, the cause of action accrues when plaintiff possesses the legal right to demand payment(see Verizon N.Y., Inc. v SprintPCS, 43 AD3d 686 [2007]).
Based on the foregoing, the motion court providently exercised its discretion when itsearched the record to determine whether, in light of defendant's statute of limitations defense,any of plaintiff's claims were time-barred thereby meriting dismissal. Contrary to the majority'sdecision and the cases cited therein, this was not an instance where the court, sua sponte, grantedsummary judgment on an issue never raised (see Buckeye Retirement Co., L.L.C., Ltd. v Lee, 41 AD3d 183[2007]; Paladino v Time Warner Cableof N.Y. City, 16 AD3d 646 [2005]; Baseball Off. of Commr. v Marsh &McLennan, 295 AD2d 73 [2002]). Instead, the court granted summary judgment on an issuewhich, although defendant never pleaded, he did in fact raise in opposition to plaintiff's motion.However, insofar as the court concluded that virtually all of plaintiff's claims were time-barred,the court erred as a matter of law.
With the exception of the loans governed by the promissory note dated July 21, 1992, whichstated that it was to be repaid within 60 months and for which, therefore, the six-year statute oflimitations would have expired on or about July 21, 2003, and the loan made July 18 and 23,1999, which defendant concedes is not time-barred, on this record, there is no evidence as towhether that the statute of limitations has run with regard to the 12 remaining loans, since thereis no evidence of any breach related thereto.
The motion court thus erred when it concluded that recovery on these 12 loans wastime-barred. The record fails to indicate when, if at all, plaintiff was entitled to or demandedrepayment of these loans. Thus, the record is bereft of any evidence as to when defendantbreached each agreement so as to trigger the statute of limitations as to each of these loans.Accordingly, whether claims as to these loans are time-barred is an issue of fact warrantingdenial of plaintiff's motion for summary judgment with regard to them.
Based on the foregoing, I believe that the motion court correctly granted plaintiff and [*4]defendant summary judgment on the July 1999 loan and on the July21, 1992 promissory note, respectively. However, to the extent that it granted defendantsummary judgment on the remainder of plaintiff's claims, the court erred. Accordingly, I wouldmodify the motion court's decision and order, to the extent of vacating its determination thatdefendant is entitled to summary judgment with regard to all the remaining claims asserted byplaintiff.