Engelbrechten v. Galvanoni & Nevy Bros., Inc.

• Decision Date: 18 July 1969
• Citation: 60 Misc.2d 419,302 N.Y.S.2d 691
• Parties: Julius von ENGELBRECHTEN, Plaintiff, v. GALVANONI & NEVY BROS., INC., Defendant.
• Court: New York City Court

Page 691

302 N.Y.S.2d 691

60 Misc.2d 419

Julius von ENGELBRECHTEN, Plaintiff, v. GALVANONI & NEVY BROS., INC., Defendant.

Civil Court of City of New York, Trial Term, New York County, Part 12.

July 18, 1969.

Topken & Farley, New York City (Reimer Kock-Weser and Harold P. Clune, New York City, of counsel), for plaintiff.

Irving Lemov, New York City, for defendant.

MARTIN B. STECHER, Justice.

After a trial of his action without a jury, I previously held (Sup., 59 Misc.2d 721, 300 N.Y.S.2d 239) that the plaintiff was entitled to a money judgment on an award made by the Hamburg (Germany) Amicable Court of Arbitration.

The defendant now moves to vacate that determination and asks for judgment dismissing the complaint or, alternatively, an order directing a new trial (CPLR 4404(b)). The sole basis of the motion is defendant's claim that the action was time barred, more than 1 year having elapsed between the making of the award in Germany and the service of the summons here (CPLR 215, subd. 5).

The motion is denied.

A party may move to dismiss a cause of action barred by the Statute of Limitations (CPLR 3211(a)(5)). Such motion may be made 'before service of the responsive pleading is required' but the defense 'is waived unless raised either by such motion or in the responsive pleading' (CPLR 3211(e); Nehasane Park Association v. Lloyd, 167 N.Y. 431, 60 N.E. 741).

It is undisputed that, despite the many years that elapsed between the commencement of the action and the making of this motion, the length of time the case was at issue, the plethora of litigated motions made prior to trial, and the liberality with which the answer was permitted to be amended during trial to plead fraud, no mention was made of the Statute of Limitations until after the decision was filed. The only reason given for the failure to plead the statute is the alleged neglect of defendant's prior counsel.

Although broad discretionary powers to set aside a verdict or decision are granted by CPLR 4404, they are not unlimited. It would serve no useful purpose to recite all of the fact situations in which such relief may be granted. Suffice to say the alleged mistake or neglect of counsel resulting in a statutorily imposed waiver (CPLR 3211(e)) followed by a trial of the issues is not such a situation.

Nor are the provisions of CPLR 2001 of help to the defendant. Mistakes, omissions, defects, or irregularities may be corrected 'if a substantial right of a party is not prejudiced'; but a substantial right would be prejudiced if the plaintiff were required to retry the case.

The case would, if the motion were granted, have to be retried (Re Rothschild's Estate, 251 App.Div. 639, 297 N.Y.S. 189). It is not at all clear whether the ...