105 A.D.2d 565 | N.Y. App. Div. | 1984
Appeal from an order of the Supreme Court at Special Term (Davis, J.), entered December 12,1983 in Monroe County, which granted defendant’s motion for summary judgment dismissing the complaint.
Subsequent to the divorce, plaintiff commenced a series of lawsuits against defendant relating to alleged misrepresentation by defendant during the divorce action. The causes of action alleged in the various complaints have ranged from malpractice to defamation and fraud, as well as some unidentifiable claims. The first action, which was commenced on June 30, 1982, was dismissed on December 8, 1982 for lack of personal jurisdiction over defendant. The second action was commenced on December 8, 1982, but was subsequently dismissed, upon a motion of defendant, for failure to state a cause of action. Plaintiff’s third action, the one at issue herein, was commenced on July 11,1983. The first cause of action in said complaint alleges acts of negligent omission by defendant in his representation of plaintiff in the matrimonial action. The second cause of action alleges that defendant disclosed confidential information to his wife’s attorney by showing said attorney a letter which plaintiff had written. As a result of said disclosure, plaintiff claims that his wife’s attorney influenced a medical health practitioner, who examined plaintiff with regard to custody of plaintiff’s child, to produce a damaging evaluation causing removal of plaintiff’s visitation rights. Plaintiff’s third cause of action is predicated upon a claim that defendant defamed and slandered plaintiff by submitting a false statement to the Town of Brighton Police Department for the purpose of producing a damaging police report about plaintiff. Finally, plaintiff’s fourth cause of action charges defendant with additional acts of negligent omission related to defendant’s representation of plaintiff at a pretrial conference associated with the then-pending matrimonial action.
Defendant moved for dismissal of the complaint on the grounds that it fails to state a cause of action, that the Statute of Limitations is a complete bar and that there are no triable issues of fact. Special Term granted the motion and this appeal by plaintiff ensued. It must be noted that plaintiff is proceeding pro se in this litigation. It is very difficult to read the complaint
Finding as we do, we do not address the other issues raised except to note that we disagree with Special Term in its conclusion that all causes of action should have been dismissed because of the Statute of Limitations. The statute is an affirmative defense which must be alleged and proven by defendant. In this instance, defendant alleged the Statute of Limitations as a defense to the third cause of action only.
Order affirmed, with costs. Main, J. P., Casey, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.