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 summary judgment and dismissed certain of her claims on the ground of statute of limitations, reversed, on the law, without costs, the dismissed claims reinstated, plaintiff granted summary judgment as to liability on those claims, and the matter remanded for a trial as to damages.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Gonzalez, P.J., Saxe, McGuire, Acosta, RomÁn, JJ.
CPLR 3211(e) explicitly provides that an objection or defense based on the statute of limitations 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  [statute of limitations defense waived unless raised by aggrieved party]).
As defendant waived the affirmative defense of statute of limitations, Supreme Court erred in its sua sponte consideration of that defense (see Paladino v Time Warner Cable of N.Y. City, 16 AD3d 646  ["court may not take judicial notice, sua sponte, of the applicability of a statute of limitations if that defense has not been raised"]).
While "courts generally allow pro se litigants some leeway on the presentation of their case" (Stoves & Stones v Rubens, 237 AD2d 280, 280 ), in this particular case it was error to treat defendant's opposition to plaintiff's motion for summary judgment on damages as either a motion to amend defendant's answer, or a cross motion for summary judgment based on the statute of limitations. "A motion for summary judgment on one claim or defense does not provide a basis for searching the record and granting summary judgment on an unrelated claim or defense'" (Baseball Off. of Commr. v Marsh & McLennan, 295 AD2d 73, 82 , quoting Sadkin v Raskin & Rappoport, 271 AD2d 272, 273 ). All concur except Gonzalez, P.J. and RomÁn, J. who dissent in part in a memorandum by RomÁn, J. as follows:
ROMÁN, J. (dissenting in part)
Well-settled law mandates an outcome, for the most part different from that which the majority holds and therefore, I dissent.
From February 3, 1992 through July 23, 1999, plaintiff made a series of personal loans to the defendant. Some of the loans were evidenced by promissory notes, others by checks. Notably, at his deposition, and in his affidavit in opposition to plaintiff's motion, defendant conceded that he did in fact borrow all the money alleged by plaintiff. A review of the record shows that with the exception of one promissory note, dated July 21, 1992, there is no indication as to when defendant was obligated to repay plaintiff the money borrowed or when, if at all, plaintiff demanded payment of the loans. The promissory note dated July 21, 1992, however, states that defendant agreed to repay a loan totaling $16,200 within 60 months of the note's execution.
Plaintiff moved for summary judgment alleging that inasmuch as defendant admitted borrowing money from the plaintiff as well his failure to repay the debt, plaintiff was entitled to summary judgment. Defendant opposed plaintiff's motion arguing that all but one of the loans made to him by the plaintiff were unenforceable as time barred. Defendant conceded that plaintiff's loan of $1950, made on July 18 and 23, 1999, evidenced by a promissory note dated July 23, 1999, was not time-barred. The motion court, acknowledging that defendant had not raised the statute of limitations defense in his answer, nevertheless found that this defense barred the majority of plaintiff's claims, with the exception of the loan made July 1999. In the absence of any motion by the defendant, the court directed judgment in defendant's favor, with the exception of the loan made to defendant on July 18 and 23, 1999, in the amount of $1950, as to which it directed judgment in plaintiff's favor. Plaintiff appeals, averring that the motion court erred in allowing defendant to interpose a statute of limitations defense, a defense defendant never asserted in his answer nor in a pre-answer motion to dismiss. For the reasons that follow hereinafter, I believe that the law dictates a modification of the motion court's decision, rather than, 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 her answer or fails to move for dismissal on that ground, via a pre-answer motion, the defense is ordinarily waived (see Dougherty v City of Rye, 63 NY2d 989, 991-992 ; Fade v Pugliani, 8 AD3d 612, 614 ). However, when a defendant fails to plead an affirmative defense, as required by CPLR 3211(e) and 3018(b), but nevertheless asserts that defense in connection with a motion for summary judgment, the waiver is said to be retracted and the court can grant, when the defendant is the movant, or deny, when the defendant is the opponent, summary judgment based upon the unpleaded affirmative defense (see Lerwick v Kelsey, 24 AD3d 918, 919-920 ; Allen v Matthews, 266 AD2d 782, 784 ; Adsit v Quantum Chem. Corp., 199 AD2d 899 ). The threshold inquiry is whether in considering the unpleaded defense, the opponent of the defense is prejudiced thereby (see BMX Wordlwide v Coppola N.Y.C., 287 AD2d 383 ; Allen v Matthews, 266 AD2d 782, 784 ; Seaboard Sur. Co. v Nigro, Bros. 222 AD2d 574 ; Rogoff v San Juan Racing Assn. Inc., 77 AD2d 831 , affd 54 NY2d 883 ). Such prejudice, however, is ameliorated when the defense was previously raised on a prior motion or during discovery (id.), or when the opponent of the motion, where defendant seeks summary judgment based upon said defense, is given an opportunity to fully respond to the motion for summary judgment (Sheils v County of Fulton, 14 AD3d 919 , lv denied 4 NY3d 711 ; Kirilescu v American Home Prods. Corp., 278 AD2d 457 , lv denied 96 NY2d 933 ; McSorley v Philip Morris, Inc., 170 AD2d 440 , appeal dismissed 77 NY2d 990 ; International Fid. Ins. Co. v Robb, 159 AD2d 687 ).
In this case, the motion court properly considered defendant's statute of limitations defense proffered for the first time in opposition to plaintiff's motion for summary judgment (Allen at 784). In its decision, the motion court noted that defendant had "vigorously asserted such a defense" in his post-answer submissions, i.e., in opposition to plaintiff's motion for summary judgment. Additionally, a review of the record shows that plaintiff, who had ample opportunity to address the statute of limitations defense in reply to defendant's opposition to her motion for summary judgment, never alleged that she was surprised 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 ignores the legion of cases, which create an exception to the well-settled rule related to affirmative defenses, waiver and motions for summary judgment.
The motion court thus erred not in procedurally awarding defendant relief but in substantively concluding, on this record, that all but one of ...