Motion Date: 01/18/13
DEBRA A. JAMES Justice
PRESENT: DEBRA A. JAMES Justice
The following papers, numbered 1 to 5 were read on this motion for summary judgment.
Notice of Motion/Order to Show Cause -Affidavits -Exhibits
No(s) 1, 2
Answering Affidavits - Exhibits
Replying Affidavits – Exhibits
Sur Replying Affidavits
This subrogation action arises from flooding, which damaged plaintiff Scholastic(Scholastic)
Inc.'s building (Building), located at 557 Broadway in Manhattan, on June 1,
2006. The flooding resulted when a Victaulic coupling (coupling), securing a section of four-inch diameter piping to a 90-degree elbow in the ceiling of the first floor of the Building, became loosened and the piping separated. Defendant Pace Plumbing Corp. (Pace) had installed the coupling.
Pace now moves, pursuant to CPLR 3212 (a), for summary judgment dismissing the complaint. Pace argues that: (1) the action is time-barred; (2) there is no evidence of negligence on its part; and (3) the complaint must be dismissed, because plaintiff is responsible for spoliation of evidence, inasmuch as Scholastic failed to preserve the coupling.
The statute of limitations is an affirmative defense that is waived if it is raised neither in the defendant's answer, nor in its pre-answer motion to dismiss. CPLR 3211 (e); Horst v Brown. 72 A.D.3d 434 (1st Dept 2010). Pace contends that Scholastic's complaint is governed by the six-year statute of limitations governing breach of contract claims (CPLR 213 ), and that therefore the action is untimely, because it was commenced more than six years after the Building was completed. Pace asserts that it did raise this defense in its answer. Scholastic argues that the three-year limitations period set forth for claims sounding in negligence (CPLR 214 ) controls; that the action is timely, because it was commenced less than three years after the Building was damaged by the flooding; and that Pace failed to give proper notice of its statute of limitations defense.
CPLR 3 013 provides that statements in a pleading "shall be sufficiently particular to give the court and parties notice of ... the material elements of each cause of action or defense." CPLR 3014 provides that "[e]very pleading shall consist of plain and concise statements in consecutively numbered paragraphs. ... Separate causes of action or defenses shall be separately stated and numbered." CPLR 3018 (b) provides that, when pleading affirmative defenses, " [a] party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise ... [including] statute of limitation".
After setting forth 14 affirmative defenses in properly separate and numbered paragraphs, Pace set forth the following 15th affirmative defense:
"That the answering defendant not being fully advised as to all the facts and circumstances surrounding the incident complained of hereby asserts and reserves onto [sic] itself the defenses of accord and satisfaction, arbitration and award, discharge of bankruptcy, duress, estoppels, failure of consideration, fraud, illegality, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or an affirmative defense which further investigation of this matter may prove applicable herein."
Such alphabetical list of wholly conclusory defenses fails to comply with CPLR 3 013, or CPLR 3 014, and therefore fails to give Scholastic adequate notice that a statute of limitations defense is being alleged, let alone any notice of which statute of limitations Pace relies upon. See Colleran v Rockman. 232 A.D.2d 322 (1st Dept 1996); Freemont In v. & Loan v Sessions. 21 Misc.3d 1121[A], *5, 2008 NY Slip Op 52132[U] (Sup Ct, Kings County 2008) citing Foley v D'Agostino, 21 A.D.2d 60 (1st Dept 1964). Moreover, the defenses listed are not even asserted, but are expressly set forth only potentially, to be raised if subsequently found to be applicable. In these circumstances, the court does not hesitate to hold that Pace has waived the defense of untimeliness.
Pace argues that Scholastic has not been prejudiced, because, no matter how clearly the affirmative defense might have been pled, Scholastic could not retroactively commence this action at an earlier time. That argument is wholly unpersuasive. It is always the case that, once litigation has commenced, the facts preceding the litigation cannot be changed. The rules governing pleadings bear on the conduct of the litigation. Here, had Scholastic been given adequate notice that Pace would rely on the ...