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Miriam German v. Joseph Amadio and Roslyn Amadio

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


December 3, 2010

MIRIAM GERMAN,
APPELLANT,
v.
JOSEPH AMADIO AND ROSLYN AMADIO, RESPONDENTS.

Appeal from a judgment of the District Court of Nassau County, Fourth District (Fred J. Hirsh, J.), entered October 27, 2008. The judgment, after a non-jury trial, dismissed the action.

German v Amadio

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 3, 2010

PRESENT: IANNACCI, J.P., NICOLAI and MOLIA, JJ

ORDERED that the judgment is affirmed without costs.

Plaintiff commenced this small claims action in August 2008, seeking to recover the principal sum of $2,850 from defendants, on the ground that defendants had allegedly withheld that amount from wages she had earned between 1999 and 2000 but had failed to pay the sums withheld to the Internal Revenue Service.

Following a non-jury trial, the District Court dismissed the action, on its own motion, on the ground that the action was barred by the statute of limitations (see CPLR 213). However, the affirmative defense of statute of limitations is waived if it is not timely raised (see CPLR 3211 [a] [5], [e]). Since defendants never raised the statute of limitations as an affirmative defense at the small claims trial or via a motion to dismiss the action (see Farkas v Schwarzenberger, 11 Misc 3d 129[A], 2006 NY Slip Op 50296[U] [App Term, 2d & 11th Jud Dists 2006]; see also Glendora v Mastrorilli, 14 Misc 3d 87, 88 [App Term, 9th & 10th Jud Dists 2006]; Valentino v Weisenbacher & Schneff, NYLJ, July 27, 1979 [App Term, 9th & 10th Jud Dists]), it was error for the court to dismiss the action on this ground. Nevertheless, as the record established that plaintiff totally failed to substantiate her claim that her Social Security taxes had not been paid for the period in question, she was not entitled to judgment in her favor.

We do not consider plaintiff's arguments to the extent that they are premised on an alleged settlement offer she received from defendants, as such an offer is inadmissible as proof of liability (see CPLR 4547; see also Micena v Katz, 68 AD3d 826 [2009]).

Since the District Court's determination effected substantial justice between the parties according to the rules and principles of substantive law (UDCA 1807), the judgment is affirmed, albeit on other grounds.

Iannacci, J.P., Nicolai and Molia, JJ., concur. Decision Date: December 03, 2010

20101203

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