Opinion
July 10, 1967
Order of the Supreme Court, Nassau County, dated November 9, 1966, modified by granting plaintiff's motion to the extent of striking out so much of the partial defense alleged in paragraphs 29 through 31 of the answer as sets forth the Statute of Limitations with respect to the fourth and fifth causes of action of the amended complaint. As so modified, order affirmed, insofar as appealed from, with $10 costs and disbursements. In deciding plaintiff's appeal, as limited by her brief, we have granted plaintiff's motion to strike out paragraphs 29 through 31 of the answer because our prior order herein ( 26 A.D.2d 658) was not intended to grant leave to defendants to plead the Statute of Limitations with respect to each of plaintiff's five causes of action; rather it was intended to suggest to defendants that the defense might be pleaded, if defendants were so advised, with respect to the first three causes of action against which that defense had not then been raised by answer (CPLR 3211, subd. [e]). At the time of the decision of the prior appeal, defendants had waived the partial defense with respect to the fourth and fifth causes of action (CPLR 3211, subd. [e]), having failed to raise that defense by their first motion pursuant to CPLR 3211 (subd. [a]) or in their answer. Defendants, however, are free to apply at Special Term for leave to allege the partial defense with respect to the fourth and fifth causes of action (CPLR 3025, subd. [b]). We have not considered whether a partial defense is stated because that issue was not raised at Special Term by plaintiff's motion to dismiss the partial defense on the ground that it has no merit (CPLR 3211, subd. [b]). Christ, Acting P.J., Brennan, Hopkins, Munder and Nolan, JJ., concur.