| Matter of Kowalczyk v Monticello |
| 2013 NY Slip Op 04869 [107 AD3d 1365] |
| June 27, 2013 |
| Appellate Division, Third Department |
| In the Matter of Joseph Kowalczyk, Appellant, v Village ofMonticello, Respondent. |
—[*1] Bonancic, Krahulik, Cuddeback, McMahon & Brady, LLP, Middletown (James V.Galvin of counsel), for respondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (LaBuda, J.), enteredOctober 5, 2012 in Sullivan County, which, in a proceeding pursuant to CPLR article 78,granted respondent's motion to dismiss the petition.
In 2001, petitioner purchased a residential apartment building in the Village ofMonticello, Sullivan County, and respondent's Code Enforcement Officer thereafterissued various building permits with respect to two units contained therein. Aftercompleting the renovations in those units, petitioner was issued two conditionalcertificates of occupancy. Upon satisfying the required conditions set forth in therespective certificates, petitioner rented the subject apartments to tenants.
Respondent subsequently amended its municipal code to require landlords ofresidential properties to obtain a rental permit and, in August 2011, petitioner applied forsuch a permit. Approximately two weeks later, respondent's Code Enforcement Officerremoved the tenants from the apartments in question and issued a violation notice citing,among other things, the presence of an allegedly improper sewer system upon thepremises. Petitioner's attempt to remedy this situation proved unsuccessful and, inOctober 2011, respondent issued a second violation notice alleging a multitude of codeviolations and denying the requested rental permit.[*2]
In April 2012, petitioner commenced this CPLRarticle 78 proceeding seeking, among other things, to compel the issuance of a rentalpermit for the units in question. Respondent failed to timely answer, and Supreme Courtgranted petitioner a default judgment. In June 2012, Supreme Court granted respondent'smotion to vacate the default judgment and, in July 2012, respondent filed a verifiedanswer asserting numerous "affirmative defenses."[FN*]Noticeably absent, however, was any mention of a defense/objection based upon theapplicable four-month statute of limitations (see CPLR 217 [1]). The matterproceeded to trial in August 2012, at which time respondent made an oral motion todismiss the petition as untimely. Supreme Court granted respondent's motion anddismissed the petition, prompting this appeal.
Petitioner contends that Supreme Court erred in granting respondent's oral motion todismiss the petition based upon statute of limitations grounds inasmuch as respondentfailed to timely raise this defense/objection in either its verified answer or a pre-answermotion to dismiss. We agree. It is well established that an aggrieved party must raise astatute of limitations defense/objection in either the answer or a pre-answer motion todismiss (see CPLR 3211 [e]; 7804 [f]; Goldenberg v Westchester County Health Care Corp., 16 NY3d323, 327 [2011]; Gauthierv Countryway Ins. Co., 100 AD3d 1062, 1062 [2012]). A pre-answer motion todismiss based upon a statute of limitations defense/objection necessarily "must be madeprior to the time in which to serve an answer, and the failure to do so will result in awaiver of the defense unless [thereafter] raised in the responsive pleading" (Matter ofAbramov v Board of Assessors, Town of Hurley, 257 AD2d 958, 960 [1999], lvdenied 93 NY2d 813 [1999]; see CPLR 3211 [e]; Dougherty v City ofRye, 63 NY2d 989, 991-992 [1984]; Gauthier v Countryway Ins. Co., 100AD3d at 1062).
While Supreme Court correctly found that respondent's oral motion todismiss—made on the first day of trial—was untimely (see Lefkowitz vKaye, Scholer, Fierman, Hays & Handler, 271 AD2d 576, 576 [2000]), the courtnevertheless dismissed the petition based upon respondent's tenth affirmative defense,which purported to "reserve[ ] [respondent's] right to assert [such] further affirmativedefenses as [may be] appropriate as investigation and discovery continue." This is not avalid affirmative defense. Simply put, a party cannot employ a catch-all provision in anattempt to preserve any and all potential defenses/objections for future use withoutaffording notice to the opposing party—particularly where, as here, thedefense/objection at issue is both apparent from the face of the petition and, more to thepoint, is specifically waived if not timely raised (see CPLR 3211 [e]).
To be sure, a respondent is permitted—insofar as is relevant here—toamend his or her answer to assert additional affirmative defenses "once without leave ofcourt within [20] days after its service, or at any time before the period for responding toit expires" (CPLR 3025 [a]) or, thereafter, "by leave of court or by stipulation of allparties" (CPLR 3025 [b]). Here, however, respondent neither amended its answer withinthe time limits set forth in CPLR 3025 (a) nor sought leave to amend under CPLR 3025(b). Under these circumstances, Supreme Court erred in granting respondent's motion todismiss.[*3]
Peters, P.J., Lahtinen and Stein, JJ., concur.Ordered that the judgment is reversed, on the law, without costs, motion denied andmatter remitted to the Supreme Court for further proceedings not inconsistent with thisCourt's decision.
Footnote *: In the context of aCPLR article 78 proceeding, affirmative defenses are more appropriately denominated as"objections in point of law" (CPLR 7804 [f]).