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Gross, Shuman, Brizdle & Gilfillan, P. C. v. Bayger
Citations: 256 A.D.2d 1187; 682 N.Y.S.2d 766; 1998 N.Y. App. Div. LEXIS 14335
Court: Appellate Division of the Supreme Court of the State of New York; December 30, 1998; New York; State Appellate Court
Order affirmed unanimously without costs. The Supreme Court did not abuse its discretion in denying the defendant's cross motion to amend his answer to include the Statute of Limitations as an affirmative defense. The defendant waived this defense by failing to assert it in a motion to dismiss or in the original answer, as per CPLR 3211(e) and relevant case law. While amendments to pleadings are generally allowed unless there is surprise or prejudice, the court found a lengthy, unexplained delay in the defense's assertion, with the defendant having knowledge of the relevant facts from the beginning of the action. Additionally, the court properly denied the defendant's request for summary judgment to dismiss the complaint on the grounds of not breaching the agreement, as the defendant failed to demonstrate that his interpretation of the agreement was the only reasonable one. The case references include Utica Carting v. World Fire Marine Insurance Co., Dowdle v. Richards, and St. Mary v. Paul Smith’s College, supporting the court's decisions. The appeal originated from an order of the Supreme Court in Erie County, presided over by Justice Sconiers.