Orix Financial Services v. Haynes

56 A.D.2d 377, 867 N.Y.S.2d 332

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 25, 2008
• Status: Published

Opinion

— Order, Supreme Court, New York County (Jane S. Solomon, J.), entered September 6, 2007, which, in an action on a “conditional sale contract note,” denied plaintiffs unopposed motion pursuant to CELR 3215 for a default judgment and sua sponte dismissed the complaint as barred by the statute of limitations, unanimously reversed, on the law, without costs, the motion granted, and the matter remanded for further proceedings including entry of judgment.

The statute of limitations must be pleaded as an affirmative defense and cannot be asserted sua sponte by the court as a basis for denying an unopposed motion for a default judgment (see Buckeye Retirement Co., L.L.C., Ltd. v Lee, 41 AD3d 183, 184 [2007]). We have reviewed plaintiffs submissions on the motion and find them sufficient for purposes of CELR 3215. Concur — Lippman, F.J., Gonzalez, Moskowitz, Acosta and Renwick, JJ.