Williams v. Stimlinger

229 A.D.2d 1022, 645 N.Y.S.2d 179, 1996 N.Y. App. Div. LEXIS 9105

Opinion

—Order unanimously affirmed without costs. Memorandum: In their complaint, plaintiffs affirmatively pleaded that "[t]he limitations on liability set forth in [section] 1601 of the Civil Practice Law and Rules do not apply to this action because the claims in this action fall within the exclusion set forth in [section] 1602 (6) of the Civil Practice Law and Rules.” Defendants denied that allegation in their answer. It is therefore not necessary for defendants to plead this issue as an affirmative defense (see, Siegel, NY Prac § 223, at 326 [2d ed], citing Green Bus Lines v Consolidated Mut. Ins. Co., 74 AD2d 136, lv denied 52 NY2d 701). In light of our determination, we do not consider the remaining contentions of the parties. (Appeal from Order of Supreme Court, Cattaraugus County, Feeman, Jr., J.—Amend Answer.) Present—Pine, J. P., Fallon, Callahan, Balio and Boehm, JJ.