40 A.D.2d 599 | N.Y. App. Div. | 1972
Order of the Appellate Term, First Department, entered on January 21, 1972, granting summary judgment to the defendant, reversed, on the law, and the order of Civil Court of the City of New York, New York County, entered on May 18, .1971, affirmed. Appellants shall recover of respondent $60 costs and disbursements of this appeal. CPLR 3018 (subd. [b]) denominates the defense of Statute of Limitations an affirmative defense. CPLR 3211 (subd. [e]) provides the defense is waived if not asserted by a motion or in the responsive pleading. Suit was begun on April 17, 1970. On October 13, 1970, plaintiff made a motion for preference. The motion was granted. The case was assigned to a Trial Part for December 8, 1970. On December 11, 1970, the present attorneys were substituted and made a motion to amend the answer to include the defense of Statute of Limitations. That motion was denied without prejudice. It was renewed on January 14, 1971. That motion was granted. The grant was not based on the merits of the proposed defense for the court stated: “ This determination is not an evaluation of the merits of the proposed amended answer ”, Plaintiff was given leave to serve a reply. The amended answer was served February 18,1971. A waiver is the intentional relinquishment of a known right. (Sillman v. Twentieth Century-Fox, 3 N Y 2d 395, 403.) Essentially it is a matter of intention. The record presents the question of fact whether the defendant with knowledge of the pertinent facts failed to avail itself of the short Statue of Limitations provided in its policy in accordance with the above provisions of the CPLR. Concur—Stevens, P. J., Markewich, Nunez and McNally, JJ.; McGivern, J., dissents in a memorandum, as follows: The basic fallacy of the majority opinion is that it ignores the standing validity of the order of Judge Oliver C. Sutton granting the defendant permission to include as an affirmative defense the one-