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Ruihua Li, Appellant v. Alice Wong and Block & Lot Real Estate & Management

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


March 15, 2013

RUIHUA LI, APPELLANT,
v.
ALICE WONG AND BLOCK & LOT REAL ESTATE & MANAGEMENT, INC., RESPONDENTS.

Appeal from an order of the Civil Court of the City of New York, Queens County (Harriet Thompson, J.), entered May 17, 2011.

Li v Wong

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 15, 2013

PRESENT: RIOS, J.P., PESCE and ALIOTTA, JJ

The order granted the branch of defendants' motion seeking to dismiss the complaint as barred by the statute of limitations.

ORDERED that the order is reversed, without costs, and the branch of defendants' motion seeking to dismiss the complaint as barred by the statute of limitations is denied.

In this action to recover real estate commissions allegedly owed to plaintiff, a real estate salesperson, from defendants, a real estate brokerage firm and its president, plaintiff appeals from an order of the Civil Court which granted the branch of defendants' motion seeking to dismiss the complaint pursuant to CPLR 3211 (a) (5) as barred by the six-year statute of limitations.

At the outset, we note that, as the instant motion was made after service of defendants' answer, it should not have been made pursuant to CPLR 3211 (a) (5) (see CPLR 3211 [e]). In any event, defendants failed to plead the affirmative defense of statute of limitations in their answer or to raise it in a pre-answer motion to dismiss (see CPLR 3211 [e]; Dougherty v City of Rye, 63 NY2d 989, 991-992 [1984]; Lipman v Vebeliunas, 39 AD3d 488 [2007]). Moreover, defendants did not seek leave to amend their answer to assert the statute of limitations as an affirmative defense (cf. Hickey v Hutton, 182 AD2d 801 [1992]). Consequently, since the answer did not place plaintiff on notice that the timeliness of the action was in controversy (cf. 115 Austin Ave, LLC v City of Yonkers, 37 AD3d 684 [2007]), the affirmative defense of statute of limitations was waived by defendants' failure to make such a timely objection.

We pass on no other issue.

Accordingly, the order is reversed and the branch of defendants' motion seeking to dismiss the complaint as barred by the statute of limitations is denied.

Rios, J.P., Pesce and Aliotta, JJ., concur. Decision Date: March 15, 2013

20130315

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