Opinion
October 20, 1981
Order, Supreme Court, New York County (Greenfield, J.), entered December 22, 1980, granting defendant's motion for leave to amend its amended answer so as to assert the affirmative defense of Statute of Limitations and dismissing the complaint pursuant to CPLR 3211 (subd [a], par 5) on the ground it is time barred under the Warsaw Convention (49 US Stat 3014), unanimously modified to the extent of reversing so much of said order as dismissed the complaint and, as so modified, affirmed, without costs and without disbursements. While Special Term properly permitted defendant to amend its amended answer to assert the affirmative defense that the action was barred by the two-year Statute of Limitations contained in the Warsaw Convention, we view the gravamen of the complaint as not embraceable within article 19 of the convention (49 US Stat 3019). The record does not permit a reasoned determination as to whether the plaintiffs' causes of action are otherwise within the ambit of the Warsaw Convention and, as such, barred by the convention's two-year Statute of Limitations.
Concur — Sullivan, J.P., Ross, Lupiano, Bloom and Fein, JJ.