Opinion
July 11, 1967
MEMORANDUM BY THE COURT. The defendant moved to dismiss plaintiff's personal injury negligence action as barred by the Statute of Limitations. (CPLR 3211, subd. [a], par. 5.) The affidavit submitted in opposition to defendant's applicaton and in support of plaintiff's cross motion for "an order directing the defendant to answer, so that the issue of waver and equitable estoppel can be raised on behalf of the plaintiff by way of reply or, in the alternative, that the plaintiff be permitted to serve an amended complaint raising such issue", asserted first, that the statute had been tolled by reason of defendant's absence in military service, which contention was correctly decided by Special Term adversely to plaintiff; and, second, that the effect of defendant's liability insurance carrier's conduct in the course of its negotiations with plaintiff's original attorney, now deceased, was to estop defendant from taking advantage of the statute. ( Robinson v. City of New York, 24 A.D.2d 260; Erbe v. Lincoln Rochester Trust Co., 13 A.D.2d 211; Croop v. Odette, 29 Misc.2d 606, affd. 14 A.D.2d 724.) On the submission of such evidentiary matter, the motion may be treated as made for summary judgment (CPLR 3211, subd. [c]) but in any aspect of the application it was defendant's primary and continuing obligation to sustain the vitality of his defense, whether by "affidavit * * * by a person having knowledge of the facts" (CPLR 3212, subd. [b]) or by other competent proof. This the defendant has failed to do. There has been no objection to the legal sufficiency of the affidavits, by either party, at Special Term or here; and, under all the circumstances, including the delay that has already ensued in the prosecution of a cause of action now over seven years old, we bypass whatever purely technical objections may exist. The papers sufficiently demonstrate "that facts essential to justify opposition may exist but cannot [now] be stated" (CPLR 3211, subd. [d]), thus warranting the relief hereinafter directed pursuant to said subdivision (d). Order reversed, on the law and the facts, with costs to appellant; motion denied; and cross motion granted to the extent that defendant be allowed to assert the objection and defense of the Statute of Limitations in his responsive pleading, subject to plaintiff's right to interpose by appropriate means her claim of equitable estoppel. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.