352 Legion Funding Assoc. v 348 Riverdale, LLC, 2018 NY Slip Op 05662 [2d Dept 2018]
We agree with the plaintiff that the Supreme Court erred in sua sponte raising the affirmative defense of the statute of limitations and directing the dismissal of the complaint on that ground. The statute of limitations is an affirmative defense which is waived by a party unless it is raised either in a responsive pleading, or by motion prior to the submission of a responsive pleading (see CPLR 3211[e]; Deutsche Bank Trust Co. Ams. v Cox, 110 AD3d 760, 762; Aurora Loan Servs. LLC v Dimura, 104 AD3d 796, 797; Horst v Brown, 72 AD3d 434, 436). "A court may not take judicial notice,' sua sponte, of the applicability of a statute of limitations if that defense has not been raised" (Paladino v Time Warner Cable of N.Y. City, 16 AD3d 646, 647; see De Oleo v Charis Christian Ministries, Inc., 94 AD3d 541, 542; Horst v Brown, 72 AD3d at 436). Here, the defendant neither answered the complaint nor submitted a pre-answer motion which raised the statute of limitations defense.
The plaintiff met its burden on its motion, inter alia, for leave to enter a default judgment and for an order of reference by submitting proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant's failure to answer or appear (see CPLR 3215[f]; RPAPL 1321; Wells Fargo Bank, N.A. v Mayen, 155 AD3d 811, 813; Wells Fargo Bank, NA v Ambrosov, 120 AD3d 1225, 1226). Accordingly, the Supreme Court should have granted the motion.