Horst v. Brown

• Decision Date: 06 April 2010
• Parties: Patricia HORST, Plaintiff-Appellant, v. Owen Lloyd BROWN, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 13
72 A.D.3d 434

Patricia HORST, Plaintiff-Appellant,
v.
Owen Lloyd BROWN, Defendant-Respondent.

Supreme Court, Appellate Division, First Department, New York.

April 6, 2010.

900 N.Y.S.2d 14

Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP, Lake Success (Keith J. Singer of counsel), for appellant.

Owen Lloyd Brown, respondent pro se.

GONZALEZ, P.J., SAXE, McGUIRE, ACOSTA, ROMÁN, JJ.

72 A.D.3d 434

Order, Supreme Court, New York County (Louis B. York, J.), entered October 16, 2007, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for summary judgment and dismissed certain of her claims on the ground of statute of limitations, reversed, on the law, without costs, the dismissed claims reinstated, plaintiff granted summary judgment as to liability on those claims, and the matter remanded for a trial as to damages.

CPLR 3211(e) explicitly provides that an objection or defense based on the statute of limitations is waived unless raised in a responsive pleading or in a pre-answer motion to dismiss. Defendant failed to do either, and thus waived this defense ( see Buckeye Retirement Co., L.L.C., Ltd. v. Lee, 41 A.D.3d 183, 837 N.Y.S.2d 641 [2007] [statute of limitations defense waived unless raised by aggrieved party] ).

As defendant waived the affirmative defense of statute of limitations

72 A.D.3d 435

, Supreme Court erred in its sua sponte consideration of that defense ( see Paladino v. Time Warner Cable of N.Y. City, 16 A.D.3d 646, 793 N.Y.S.2d 63 [2005] ["court may not take judicial notice, sua sponte, of the applicability of a statute of limitations if that defense has not been raised"] ).

While "courts generally allow pro se litigants some leeway on the presentation of their case" ( Stoves & Stones v. Rubens, 237 A.D.2d 280, 280, 655 N.Y.S.2d 385 [1997] ), in this particular case it was error to treat defendant's opposition to plaintiff's motion for summary judgment on damages as either a motion to amend defendant's answer, or a cross motion for summary judgment based on the statute of limitations. "A motion for summary judgment 'on one claim or defense does not provide a basis for searching the record and granting summary judgment on an unrelated claim or defense' " ( Baseball Off. of Commr. v. Marsh & McLennan, 295 A.D.2d 73, 82, 742 N.Y.S.2d 40 [2002], quoting Sadkin v. Raskin & Rappoport, 271 A.D.2d 272, 273, 707 N.Y.S.2d 400 [2000] ).

All concur except GONZALEZ, P.J. and ROMÁN, J. who dissent in part in a memorandum by ROMÁN, J. as follows:

ROMÁN, J. (dissenting in part).

Well-settled law mandates an outcome, for the most part different from that which the majority holds and therefore, I dissent.

From February 3, 1992 through July 23, 1999, plaintiff made a series of personal

900 N.Y.S.2d 15

loans to the defendant. Some of the loans were evidenced by promissory notes, others by checks. Notably, at his deposition, and in his affidavit in opposition to plaintiff's motion, defendant conceded that he did in fact borrow all the money alleged by plaintiff. A review of the record shows that with the exception of one promissory note, dated July 21, 1992, there is no indication as to when defendant was obligated to repay plaintiff the money borrowed or when, if at all, plaintiff demanded payment of the loans. The promissory note dated July 21, 1992, however, states that defendant agreed to repay a loan totaling $16,200 within 60 months of the note's execution.

Plaintiff moved for summary judgment alleging that inasmuch as defendant admitted borrowing money from the plaintiff as well his failure to repay the debt, plaintiff was entitled to summary judgment. Defendant opposed plaintiff's motion arguing that all but one of the loans made to him by the plaintiff were unenforceable as time barred. Defendant conceded that plaintiff's loan of $1950, made on July 18 and 23, 1999, evidenced by a promissory note dated July 23, 1999, was not time-barred. The motion court, acknowledging that defendant had not raised the statute of limitations defense in his answer, nevertheless found that this defense barred the majority of

72 A.D.3d 436

plaintiff's claims, with the exception of the loan made July 1999. In the absence of any motion by the defendant, the court directed judgment in defendant's favor, with the exception of the loan made to defendant on July 18 and 23, 1999, in the amount of $1950, as to which it directed judgment in plaintiff's favor. Plaintiff appeals, averring that the motion court erred in allowing defendant to interpose a statute of limitations defense, a defense defendant never asserted in his answer nor in a pre-answer motion to dismiss. For the reasons that follow hereinafter, I believe that the law dictates a modification of the motion court's decision, rather than, as concluded by the majority, almost wholesale...