Rodriguez v. Palange

Jun 11, 2002
Versions:295 A.D.2d 155
743 N.Y.S.2d 274
2002 N.Y. App. Div. LEXIS 5907

—Order, Supreme Court, Bronx County (Barry Salman, J.), entered October 11, 2001, which denied appellant’s motion for leave to serve an amended answer with counterclaims, unanimously affirmed, without costs.

Appellant’s reliance upon the relation back doctrine to avoid the bar posed to his proposed counterclaims by the statute of limitations was improper, as found by the motion court. Appellant’s prior pleadings did not place plaintiff on notice that he would claim that her conduct was harmful to him and would be at issue in this matter. The affirmative defenses contained in defendant’s prior pleadings alleged instead only that plaintiff was herself responsible for her own injuries. Accordingly, the counterclaims contained in the proposed second amended answer do not relate back to appellant’s original pleadings for statute of limitations purposes, and the court properly denied appellant’s motion for leave to serve the proposed second amended answer (see, CPLR 203 [f]; Hager v Hager, 177 AD2d 401; Shapiro v Schoninger, 122 AD2d 38). Concur—Nardelli, J.P., Mazzarelli, Buckley, Sullivan and Marlow, JJ.