Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered September 20, 2012, which dismissed the action at the close of plaintiff's evidence.

Per Curiam.

Order (Robert R. Reed, J.), entered September 20, 2012, modified to reinstate so much of the complaint as seeks to recover damages of $1,000 for defendant's breach of a loan commitment and, as modified, affirmed, without costs.

This action seeks to recover $7,754.80 in loan proceeds allegedly advanced by plaintiff to defendant and various members of defendant's family. Even if accepted as true and given the benefit of every favorable inference (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]), the evidence elicited by plaintiff on his case-in-chief provides no basis to impose liability upon defendant in connection with the series of loans involving defendant's family members. Significantly, no claim or showing was made by plaintiff below that defendant was a party to any such loan transactions. As the trial court put it, there was "no proof whatsoever that defendant herself ever committed to repay [plaintiff] for the outlay" of the travel and immigration related expenses said to have given rise to those loans.

However, plaintiff presented a viable claim in connection with the $1,000 loan that he allegedly extended to defendant, in view of his as yet unrebutted testimony concerning his making of the loan, defendant's promise to repay and defendant's failure to do so (see Golding v Gottesman, 41 AD3d 430 [2007]). The trial court erred in its sua sponte dismissal of that claim as time-barred, where defendant waived any statute of limitations defense by failing to raise it in her answer or by way of a preanswer motion to dismiss (see CPLR 3211[e] Horst v Brown, 72 AD3d 434 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: April 30, 2014