Styles v. Gibson

27 A.D.2d 784 | N.Y. App. Div. | 1967

Aulisi, J.

Appeal from an order of Special Term which dismissed plaintiff’s separate defense that defendant’s counterclaim was barred by the Statute of Limitations. The litigation arose out of an automobile accident which occurred on October 15, 1961. The summons was served on September 29, 1964, the complaint was delivered on February 17, 1965 and the answer and counterclaim mailed on February 19, 1965. CPLR 203 (subd. [e]) is controlling (see CPLR 218, 10003) and provides in pertinent part, “A defense or counterclaim is not barred if it was not barred at the time the claims asserted in the complaint were interposed” (see, 1 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 203.24; McLaughlin, Practice Commentary, McKinney’s Cons. Laws of New York, vol. 7B, CPLR, p. 82). Order affirmed, with costs. G-ibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in a memorandum decision by Aulisi, J.