Defendant, the City of New York, moves inter alia for summary judgment, dismissing plaintiff's complaint as asserted against it.

Defendant contends it is entitled to judgment on the ground that plaintiff's complaint is barred by the doctrine of res judicata. In an Order dated March 30, 2006, United States District Judge David G. Trager, dismissed plaintiff's action against the City of New York.

A review of that decision demonstrates that the two cases arise out of the same set of facts which are set forth below.

Plaintiff was working as a paralegal for the late Abraham Hirschfeld, at his real estate firm located at 328 East 61st Street, in the County, City and State of New York. Hirschfeld owned this property, which was a four-floor office building, and, allowed plaintiff to reside on the vacant fourth floor of the building for the course of plaintiff's employment with him.

Hirschfeld also owned a co-op apartment in Jackson Heights, in the County of Queens City and State of New York, and allowed plaintiff to use this apartment as a second residence during the duration of Hirschfeld's incarceration in prison, beginning in the summer of 2000.

During this time period, plaintiff agreed to allow his acquaintance, Richard Simon a/k/a Richard Anglin, and Simon's godson, Erik Gaston, to stay at the fourth-floor apartment at 328 East 61st Street. Plaintiff, without informing Hirschfeld, subsequently allowed Simon and Gaston to move into the Jackson Heights apartment, and obtained an extra set of keys for them.

Simon and Gaston resided at the Jackson Heights apartment for approximately three months, at which point plaintiff requested that Simon and Gaston pay $100.00 per week to continue residing there. Simon and Gaston paid the required rent, and despite there being a lack of any written agreement, plaintiff claims that he only agreed to allow Simon and Gaston to stay at the apartment until the end of February, 2001.

On March 1, 2001, plaintiff bolted the door closed, preventing Simon and Gaston from entering the apartment. Plaintiff let them in at which point Simon requested they be allowed to stay longer. Plaintiff refused because Hirschfeld had relinquished ownership of the apartment as of February 28, 2001 as part of a lawsuit settlement.

Simon and Gaston were allowed to stay in the apartment that evening, and at some point during the night, Simon left the apartment and returned with two policemen. Simon told the policemen that plaintiff had entered the apartment without authorization. The officers told plaintiff to leave the apartment, and plaintiff followed their directive.

On June 26, 2001, plaintiff was summoned to housing court to testify in a holdover action against Simon and Gaston brought by the co-op board of the Jackson Heights apartment building. When plaintiff returned to the courthouse after a lunch break, he was approached by two officers, and was arrested after providing the officers with his identification.

Plaintiff was taken to the precinct and was issued a ticket/summons charging him with criminal trespass in relation to a complaint filed by Simon, using the name Richard Anglin, on March 23, 2001, regarding the March 1, 2001 incident.

On August 1, 2001, plaintiff was arraigned and released on his own recognizance after he signed an Order of Protection precluding him from inter alia harassing, assaulting, menacing and intimidating Richard Anglin. Plaintiff did not know that Richard Anglin was an alias used by Richard Simon.

On August 16, 2001, plaintiff was again summoned to Court to testify in the holdover action by the co-op board of the Jackson Heights apartment building. When plaintiff returned to the Courthouse after lunch, he was approached by two officers, and, after providing his identification, was arrested for violation of the Order of Protection. Plaintiff's prosecution for this incident ended with the Grand Jury returning no true bill.

In an Order dated March 30, 2006, United States District Judge David G. Trager dismissed plaintiff's cause of action for false arrest stemming from the March 1, 2001 incident, based on plaintiff's failure to demonstrate that he was actually confined during this incident. The Judge further dismissed plaintiff's claims for deprivation of property arising from this incident because plaintiff failed to demonstrate that post-deprivation remedies were not available under state law.

The District Court also dismissed plaintiff's cause of [*2]action for false arrest stemming from the August 1, 2001 incident based on the existence of probable cause

The District Court, however, found issues of fact regarding whether Officer Linden and Lieutenant White had probable cause to arrest plaintiff on June 26, 2001. As a result of these issues of fact, the District Court likewise declined to dismiss plaintiff's assault and battery claims arising from this incident.

In an order dated September 17, 2007, upon plaintiff's motion for reconsideration, United States District Judge David G. Trager, found that there was no probable cause for the June 26, 2001 arrest, but dismissed plaintiff's claims against the individual officers on the basis of qualified immunity.

In the action pending before this Court, plaintiff's complaint states four causes of action. The first cause of action alleges deprivation of property based on the March 1, 2001 incident.

The second cause of action alleges assault and battery arising from the June 26, 2001 incident.

Plaintiff's third cause of action alleges a refusal by the New York City Police Department to accept plaintiff's criminal complaint against the two police officers involved in the March 1, 2001 incident.

Plaintiff's fourth cause of action alleges a refusal by the New York City Police Department to accept plaintiff's criminal complaint against Richard Anglin.

It does not appear that the third or fourth cause of action were raised as part of the federal lawsuit.

Defendant fails to demonstrate that res judicata bars these four causes of action as a matter of law.

In addition, CPLR § 3212[a] requires motions for summary judgment to be made no later than 120 days after the filing of the note of issue, except with leave of the court on good cause shown (Brill v. City of New York, 2 NY3d 648, 652 [2004]).

Plaintiff filed his note of issue on April 16, 2013. Defendant's motion, filed more than two years and three months later, on July 23, 2015, is untimely and defendant fails to offer any excuse for this excessive delay.

Although defendant's notice of motion plainly states that the motion is a motion for summary judgment pursuant to CPLR § 3212, defendant's reply affirmation states that this is an error and that defendant is actually moving to dismiss pursuant to CPLR § 3211[a][5].

Pursuant to CPLR § 3211[e], a defense based on a ground set forth in CPLR § 3211[a][5], is waived if it is not raised in a defendant's answer or pre-answer motion to dismiss.

Defendant's answer, served on plaintiff on November 9, 2007, does not raise any of the grounds set forth CPLR § 3211[a][5]. The answer is devoid of any reference to res judicata or collateral estoppel and does not refer to any other action pending for the same relief.

Defendant's failure to raise this defense in its answer is particularly notable given that plaintiff's complaint specifically references the federal action defendant now seeks to use as a basis for dismissal.

Accordingly, defendant's motion is denied, in its entirety.