Opinion
5929 Index 158256/14E
03-08-2018
FEDERAL INSURANCE COMPANY as subrogee of Engel Burman Senior Housing at East Northport LLC, Plaintiff–Respondent, v. LAKEVILLE PACE MECHANICAL INC., Defendant–Appellant.
Law Office of James J. Toomey, New York (Michael J. Kozoriz of counsel), for appellant. Mischel & Horn, P.C., New York (Lauren E. Bryant of counsel), for respondent.
Law Office of James J. Toomey, New York (Michael J. Kozoriz of counsel), for appellant.
Mischel & Horn, P.C., New York (Lauren E. Bryant of counsel), for respondent.
Renwick, J.P., Richter, Andrias, Kapnick, Kahn, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about July 26, 2017, which denied defendant's motion to amend its answer to include the affirmative defense of statute of limitations, and, upon such amendment, to dismiss the complaint on statute of limitations grounds, unanimously affirmed, with costs.
Defendant waited more than two years to move to amend its answer to include the statute of limitations defense, arguing that plaintiff's construction negligence claim, with a three-year statute of limitations ( CPLR 214[4] ), was untimely.
Moreover, defendant made its motion almost immediately after the expiration of the six-year limitations period (by defendant's calculation) in which plaintiff could have brought the same action as a breach of contract, even though all of the facts relied upon by defendant were known to it at the time it filed its original answer. Plaintiff, relying on defendant's waiver of any statute of limitations defense ( CPLR 3211[e] ), was prejudiced by the loss of the opportunity to interpose a timely breach of contract claim, which it could have done "had the original pleading contained what the [proposed] amended one wants to add" Armstrong v. Peat, Marwick, Mitchell & Co., 150 A.D.2d 189, 190, 540 N.Y.S.2d 799 [1st Dept. 1989] ).
The motion court properly concluded that these circumstances warranted denial of defendant's motion (see CPLR 3025[b] ).