Town of Hempstead v. Lizza Industries, Inc.

• Decision Date: 29 April 2002
• Citation: 741 N.Y.S.2d 431,293 A.D.2d 739
• Parties: TOWN OF HEMPSTEAD, Respondent,<BR>v.<BR>LIZZA INDUSTRIES, INC., Appellant. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

293 A.D.2d 739

741 N.Y.S.2d 431

TOWN OF HEMPSTEAD, Respondent,

v.LIZZA INDUSTRIES, INC., Appellant. (And a Third-Party Action.)

Decided April 29, 2002.

Prudenti, P.J., Santucci, S. Miller and Friedmann, JJ., concur.

Ordered that on the Court's own motion, the notice of appeal from so much of the order as, sua sponte, dismissed the defendant's affirmative defense of the statute of limitations as to the second cause of action is treated as an application for leave to appeal from that portion of the order, and leave to appeal is granted (seeCPLR 5701 [c]); and it is further,

Ordered that the order is reversed, on the law, and the motion is denied; and it is further,

Ordered that the appellant is awarded one bill of costs.

CPLR 3211 (b) provides that "[a]party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit."As the party moving for dismissal of a defense as a matter of law, the plaintiff, Town of Hempstead, had the burden of proving its entitlement to such relief (seePalais Partners v Vollenweider,173 Misc 2d 8).

The Town did not move to dismiss the defendant's affirmative defense of the statute of limitations as to the second cause of action alleging trespass.Its motion was expressly and explicitly limited to dismissing the statute of limitations defense "with respect to Plaintiff's Fourth Cause of Action sounding in Continuing Public Nuisance."Thus, the Supreme Court erred in granting this unrequested relief.

The court also erred in granting the Town's motion to dismissthe defendant's affirmative defense of the...