Opinion
No. 2011–1858QC.
2013-03-15
RUIHUA LI, Appellant, v. Alice WONG and Block & Lot Real Estate & Management, Inc., Respondents.
Present: RIOS, J.P., PESCE and ALIOTTA, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (Harriet Thompson, J.), entered May 17, 2011. The order granted the branch of defendants' motion seeking to dismiss the complaint as barred by the statute of limitations.
ORDERED that the order is reversed, without costs, and the branch of defendants' motion seeking to dismiss the complaint as barred by the statute of limitations is denied.
In this action to recover real estate commissions allegedly owed to plaintiff, a real estate salesperson, from defendants, a real estate brokerage firm and its president, plaintiff appeals from an order of the Civil Court which granted the branch of defendants' motion seeking to dismiss the complaint pursuant to CPLR 3211(a)(5) as barred by the six-year statute of limitations.
At the outset, we note that, as the instant motion was made after service of defendants' answer, it should not have been made pursuant to CPLR 3211(a)(5) ( seeCPLR 3211[e] ). In any event, defendants failed to plead the affirmative defense of statute of limitations in their answer or to raise it in a pre-answer motion to dismiss ( seeCPLR 3211[e]; Dougherty v. City of Rye, 63 N.Y.2d 989, 991–992 [1984];Lipman v. Vebeliunas, 39 A.D.3d 488 [2007] ). Moreover, defendants did not seek leave to amend their answer to assert the statute of limitations as an affirmative defense ( cf. Hickey v. Hutton, 182 A.D.2d 801 [1992] ). Consequently, since the answer did not place plaintiff on notice that the timeliness of the action was in controversy ( cf. 115 Austin Ave., LLC v. City of Yonkers, 37 A.D.3d 684 [2007] ), the affirmative defense of statute of limitations was waived by defendants' failure to make such a timely objection.
We pass on no other issue.
Accordingly, the order is reversed and the branch of defendants' motion seeking to dismiss the complaint as barred by the statute of limitations is denied.