[*1]
Ortiz v City of New York
2016 NY Slip Op 50285(U) [50 Misc 3d 1228(A)]
Decided on February 8, 2016
Supreme Court, Richmond County
Aliotta, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through March 16, 2016; it will not be published in the printed Official Reports.


Decided on February 8, 2016
Supreme Court, Richmond County


Yvette Ortiz, Plaintiff,

against

The City of New York, NEW YORK CITY POLICE DEPARTMENT, P.O. PATRICK THOMPSON, Defendants.




150049/15

The following papers numbered 1 to 3 were fully submitted on the 18th day of November, 2015:

Papers/Numbered

Notice of Motion to Dismiss Complaint

(Affirmation in Support)

(Dated: October 19, 2015) 1

Affirmation in Opposition

(Dated: November 11, 2015) 2

Reply Affirmation

(Dated: November 16, 2015) 3


Thomas P. Aliotta, J.

Upon the foregoing papers, defendants' motion for an order pursuant to CPLR 3025(b)granting them (1) leave to serve an Amended Answer asserting the affirmative defense of the Statute of Limitations, and (2) deeming the Amended Answer to be served nunc pro tunc, is granted. The balance of the motion for, e.g., summary judgment or dimissal of the complaint pursuant to CPLR 3211(a)(7) is denied without prejudice.

This matter arises out of a two vehicle accident which occurred on October 16, 2013, on Richmond Avenue near the intersection of Forest Avenue on Staten Island. Plaintiff, a front seat passenger in a vehicle being operated by her son, claims to have sustained extensive personal injuries when their vehicle was struck in the rear by a police car owned by the City of New York and operated by Police Officer Patrick Thompson (hereinafter, collectively, the City). According to plaintiff, the vehicle in which she was riding was stopped at a red light at the time of impact (see Plaintiff's December 5, 2013 Notice of Claim, Defendants' Exhibit A).

Insofar as it appears, plaintiff's action was commenced by the filing of a Summons and Complaint with the Richmond County Clerk date-stamped: "January 16, 2015" (see Defendants' [*2]Exhibit B). It appears undisputed that service was effected upon the defendants on April 1, 2015 (see Affirmation in Support, para 3), and that a Verified Answer was interposed on or about April 17, 2015 (see Defendants' Exhibit C).

In support of their motion for, inter alia, leave to serve an Amended Verified Answer asserting the affirmative defense of the Statute of Limitations, the City relies on General Municipal Law §50-i, which provides, in relevant part, that a tort action against it must be commenced within one year and ninety days of the date of the occurrence on which it is based, in this case, one year and ninety days from October 16, 2013, or January 14, 2015 (see CPLR 304). The City further argues that plaintiff will suffer no prejudice or surprise as a result of the assertion of this affirmative defense, and that the proposed defense is meritorious.

In opposition, plaintiff sets forth the somewhat novel argument that this action was actually commenced on January 13, 2015, one day prior to the expiration of the Statute of Limitations, but that an unspecified "electronic submission error" prevented the electronic "filing" from being received until three days later [FN1] . Plaintiff further claims that she will suffer prejudice as a result of the belated assertion of this affirmative defense, and that by withdrawing its prior CPLR 3211(a) motion to dismiss, the City is precluded by CPLR 3211(e) from filing the current motion.

The motion is granted to the extent indicated.

CPLR 3025(b) provides that leave to amend a pleading "shall be freely given" in the absence of prejudice or surprise resulting directly from the delay (Fahey v. County of Ontario, 44 NY2d 934, 935 [1978]). In addition, it has now become clear that "[d]efenses waived under CPLR 3211(e) can nevertheless be interposed in an amended answer by leave of court pursuant to CPLR 3025(b) so long as the amendment will not cause the adverse party prejudice or surprise resulting directly from the delay"[FN2] (US Bank, NA v. Sharif, 89 AD3d 723, 724 [2d Dept 2011]; see Addesso v. Shemtob, [*3]70 NY2d 689, 690 [1987]; see also CPLR 3018(b); Fahey v. County of Ontario, 44 NY2d at 935; Arellano v. HSBC Bank USA, 67 AD3d 554).

As a result, and contrary to plaintiff's contention, leave to amend an answer to assert an affirmative defense waived under CPLR 3211(e) is not precluded, at least where an earlier CPLR 3211(a) motion to dismiss was withdrawn prior to any determination thereon(cf. CPLR 3211[e]). Moreover, while lateness coupled with significant prejudice or the absence of merit may result in the denial of a motion under CPLR 3025(b) (see Seda v. New York City Hous Auth, 181 AD2d 469, lv denied 80 NY2d 759), plaintiff at bar has failed to sustain her burden of establishing surprise or prejudice warranting denial of the motion (see Hickey v. Hutton, 182 AD2d 801).

Accordingly, it is

ORDERED, that defendants' motion for leave to serve a further Amended Answer is granted, and it is further

ORDERED, that the proposed Amended Answer attached to Defendants' motion papers as Exhibit D is deemed served upon plaintiff nunc pro tunc, and it is further

ORDERED, that plaintiff's time to serve a Reply is extended until 20 days after the service upon her of a copy of this Decision and Order with notice of entry; and it is further

ORDERED, that the balance of the motion for, e.g., summary judgment, is denied without prejudice to renewal.



E N T E R,

Dated: February 8, 2016

________________________________

Hon. Thomas P. Aliotta
J. S. C.

Footnotes


Footnote 1: Regarding plaintiff's assertion of an "apparent electronic submission error", the Court notes that this purported "error" is unexplained, and that plaintiff's opposition to the motion previously withdrawn by the City does not include it. Rather, plaintiff therein conceded that the matter was not commenced until January 16, 2015 (see Plaintiff's Exhibit B), and that "[t]here is and never was, any discrepancy as to the date the matter was filed with the clerk of the court" (id.). Plaintiff continues that "[in] the event the defendants intended to allege [the] statute of limitations as an affirmative defense, as it now does by way of [this allegedly] untimely and defective motion, it could have done so based on the date clearly noted on the ...Summons and Complaint (id., at para 10).

Footnote 2: While it is well settled that a party may, in a pre-answer motion, move pursuant to CPLR 3211(a)(5) to dismiss a cause of action on the ground that it is barred by the applicable statute of limitations (see CPLR 3211[e]), and that the failure to do so operates as a waiver unless the defense is raised in defendant's answer, a defendant may nevertheless be granted leave to amend its answer to assert e.g., that the action is time-barred, provided that no significant prejudice will be suffered by plaintiff as a direct result of the delay in raising the defense (see Arellano v. HSBC Bank USA, 67 AD3d 554). In addition, since the City's prior motion was withdrawn prior to being decided, it was of no precedential effect (cf. Lewiarz v. Travco Inc Co., 82 AD3d 1464, 1465-1466 [3d Dept 2011] [waiver that would otherwise result from the failure to plead the statute of limitations or move for dismissal premised on said affirmative defense "was retracted by the assertion of the defense in connection with [, as here,] a summary judgment motion" [internal quotation marks and citations omitted]).