CPLR § 203 Method of computing periods of limitation generally
(d) Defense or counterclaim
Carlson v Zimmerman, 2009 NY Slip Op 04849 (App. Div., 2nd, 2009)
The Supreme Court erred, however, in granting that branch of the
plaintiffs' motion which was to dismiss the defendants' counterclaims
as time-barred insofar as the counterclaims pertained to erosion of the
defendants' properties caused by the plaintiffs' activities. Under CPLR
203(d), "claims and defenses that arise out of the same transaction as
a claim asserted in the complaint are not barred by the Statute of
Limitations, even though an independent action by defendant might have
been time-barred at the time the action was commenced" (Bloomfield v Bloomfield, 97
NY2d 188, 193). "The provisions of CPLR 203(d) allow a defendant to
assert an otherwise untimely claim which arose out of the same
transactions alleged in the complaint, but only as a shield for
recoupment purposes, and does not permit the defendant to obtain
affirmative relief" (DeMille v DeMille, 5 AD3d 428, 429; see Delta Funding Corp. v Murdaugh, 6 AD3d 571, 571-572; Rothschild v Industrial Test Equip. Co., 203
AD2d 271, 272). Here, there is evidence that some of the defendants'
trespassing activities were undertaken in an attempt to correct damage
that the plaintiffs admitted to having caused by excavating too deeply
into their land abutting properties belonging to the defendants, and
failing to leave a sufficient buffer area along the border. It is
undisputed that these activities caused erosion on the affected
properties, allegations concerning which form the basis of portions of
the defendants' counterclaims. Accordingly, the Supreme Court should
have denied that branch of the plaintiffs' motion which was to dismiss
the counterclaims as time-barred to the extent that the damages sought
in the counterclaims are for the erosion caused by the plaintiffs'
excavating activities, and/or to reimburse the defendants' costs in
attempting to correct the resulting damage. These damages should be
applied to offset any damages award in favor of the plaintiffs and
against the defendants (cf. Delta Funding Corp. v Murdaugh, 6 AD3d at 571-572; DeMille v DeMille, 5 AD3d at 429).
The bold is mine.
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