115 Austin Ave, LLC v. City of Yonkers

Appellate Division of the Supreme Court of New York

115 Austin Ave, LLC v. City of Yonkers

37 A.D.3d 684, 830 N.Y.S.2d 355

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 20, 2007

StatusPublished

Cited by4 cases

This text of 37 A.D.3d 684 (115 Austin Ave, LLC v. City of Yonkers) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

115 Austin Ave, LLC v. City of Yonkers, 37 A.D.3d 684, 830 N.Y.S.2d 355 (N.Y. Ct. App. 2007).

Pincite

Opinion

In an action, inter alia, to recover damages for an alleged taking of real property, the plaintiff appeals from an order of the Supreme Court, Westchester County (Jamieson, J.), dated March 29, 2006, which granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint on the ground that it was barred by the statute of limitations.

Ordered that the order is affirmed, with costs.

The defendant made a prima facie showing of entitlement to judgment as a matter of law, and the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The plaintiff’s sole contention on appeal is that the defendant waived its statute of limitations defense by failing to make a preanswer motion to dismiss the complaint on that ground and by failing to assert it in the answer (see CPLR 3211 [a] [5]; [e]). We disagree. Pleadings are to be liberally construed, and if there is any doubt regarding the availability of a defense, the pleader “ ‘is entitled to the benefit of every reasonable intendment of the pleading’ ” (Brodeur v Hayes, 305 AD2d 754, 755 [2003], quoting Warwick v Cruz, 270 AD2d 255, 255 [2000]). Fairly read, the answer clearly placed the plaintiff on notice that the timeliness of this action was in controversy. Miller, J.P, Spolzino, Florio and Angiolillo, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action, inter alia, to recover damages for an alleged taking of real property, the plaintiff appeals from an order of the Supreme Court, Westchester County (Jamieson, J.), dated March 29, 2006, which granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint on the ground that it was barred by the statute of limitations.

Ordered that the order is affirmed, with costs.

The defendant made a prima facie showing of entitlement to judgment as a matter of law, and the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The plaintiff’s sole contention on appeal is that the defendant waived its statute of limitations defense by failing to make a preanswer motion to dismiss the complaint on that ground and by failing to assert it in the answer (see CPLR 3211 [a] [5]; [e]). We disagree. Pleadings are to be liberally construed, and if there is any doubt regarding the availability of a defense, the pleader “ ‘is entitled to the benefit of every reasonable intendment of the pleading’ ” (Brodeur v Hayes, 305 AD2d 754, 755 [2003], quoting Warwick v Cruz, 270 AD2d 255, 255 [2000]). Fairly read, the answer clearly placed the plaintiff on notice that the timeliness of this action was in controversy. Miller, J.P, Spolzino, Florio and Angiolillo, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

37 A.D.3d 684, 830 N.Y.S.2d 355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/115-austin-ave-llc-v-city-of-yonkers-nyappdiv-2007.

Opinion

Related

Cite This Page — Counsel Stack