Occhipinti v. Kelly

208 A.D.2d 817, 617 N.Y.S.2d 837

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 24, 1994
• Status: Published

Opinion

In an action to recover for property damages which was commenced in the District Court of Suffolk County (Action No. 2) and ordered to be tried jointly with a related action in the Supreme Court, Nassau County (Action No. 1), the third-party defendant appeals from an order of the Supreme Court, Nassau County (Saladino, J.), dated February 3, 1993, which granted the third-party plaintiff’s motion for summary judgment dismissing the appellant’s counterclaim as time-barred.

Ordered that the order is affirmed, without costs or disbursements.

In this action which was commenced in District Court, Suffolk County, the third-party defendant, David Laudani, interposed a counterclaim against the third-party plaintiff, Michael V. Kelly, which was clearly time-barred. Kelly did not serve a reply to the counterclaim, as he was not required to do so (see, UDCA 907 [a]), nor did he make a prereply motion to dismiss the counterclaim based on the Statute of Limitations (see, UDCA 1002). However, under the circumstances of this case, where there is no indication in the record of any surprise or prejudice, the Supreme Court properly granted Kelly’s motion for summary judgment dismissing the counterclaim as time-barred (see, Terry Contr. v State of New York, 27 AD2d 499; Hill v State of New York, 29 AD2d 824; Rothfeld v Lintz, 36 Misc 220; see also, Barrett v Kasco Constr. Co., 84 AD2d 555, affd 56 NY2d 830; Hickey v Hutton, 182 AD2d 801; Seda v New York City Hous. Auth., 181 AD2d 469). Bracken, J. P., Copertino, Joy and Altman, JJ., concur.