Some good old fashioned SOL or Use it or lose it

CPLR R. 3211(e)

Horst v Brown, 2010 NY Slip Op 02836 (App. Div., 1st, 2010)

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
[2007] [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
[2005] ["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 [1997]), 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 &
, 295 AD2d 73, 82 [2002], quoting Sadkin v Raskin &
, 271 AD2d 272, 273 [2000]). 

All concur except Gonzalez, P.J. and RomÁn, J. who dissent in part in a
memorandum by RomÁn, J. as follows:


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 [1984]; Fade v
, 8 AD3d 612, 614 [2004]). 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
[2005]; Allen v Matthews, 266 AD2d 782, 784 [1999]; Adsit v
Quantum Chem. Corp.
, 199 AD2d 899 [1993]). 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 [2001]; Allen v Matthews, 266 AD2d 782, 784 [1999];
Seaboard Sur. Co. v Nigro, Bros. 222 AD2d 574 [1995]; Rogoff v
San Juan Racing Assn. Inc.
, 77 AD2d 831 [1980], affd 54 NY2d
883 [1981]). 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
[2005], lv denied 4 NY3d 711 [2005]; Kirilescu v American Home
Prods. Corp.
, 278 AD2d 457 [2000], lv denied 96 NY2d 933
[2001]; McSorley v Philip Morris, Inc., 170 AD2d 440 [1991], appeal
77 NY2d 990 [1991]; International Fid. Ins. Co. v Robb,
159 AD2d 687 [1990]).


Cadlerock, L.L.C. v Renner, 2010 NY Slip Op 02849 (App. Div., 1st, 2010)

Defendant sufficiently pleaded his statute of limitations affirmative
defense (see Immediate v St. John's Queens Hosp., 48 NY2d 671,
673 [1979]). Contrary to plaintiff's contention, the promissory note,
which required defendant to pay principal and interest payments monthly
for 20 years, after which the loan would have self-liquidated, was an
installment contract (see Phoenix Acquisition Corp. v Campcore, Inc.,
81 NY2d 138, 141-142 [1993]), and, since the debt was not accelerated
while defendant was making the monthly payments, the applicable six-year
statute of limitations (CPLR 213[2]) began to run on the date on which
each installment became due and payable (see Phoenix Acquisition
at 141). Thus, the statute of limitations bars plaintiff from
seeking to recover the amount of the installment payments, including any
interest, that defendant defaulted on before April 18, 2002, when this
action was commenced (see id.; Sce v Ach, 56 AD3d 457, 458-459 [2008]).

The defense of laches is unavailable in this action at law
commenced within the period of limitations (see Matter of American Druggists' Ins. Co., 15
AD3d 268
[2005], lv dismissed 5 NY3d 746 [2005]; Kahn v
New York Times Co.
, 122 AD2d 655, 663 [1986]). However, we conclude
that a triable issue of fact exists whether plaintiff's claims are
barred by the doctrine of equitable estoppel, i.e., whether defendant
justifiably relied on the nine years of inaction by plaintiff and its
predecessors-in-interest to reasonably conclude that his monthly
payments were sufficient to satisfy his payment obligations under the
note, and therefore was misled into paying a reduced amount for years
without realizing that interest was accruing at the 14% interest rate
[*2](see Fundamental Portfolio Advisors, Inc. v
Tocqueville Asset Mgt., L.P.
, 7 NY3d 96
, 106—107 [2006]; Triple
Cities Constr. Co. v Maryland Cas. Co.
, 4 NY2d 443, 448 [1958]).

The bold is mine.

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