GARTENBERG v. ST. PAUL FIRE & MARINE INS. CO.


40 A.D.2d 599 (1972)

Leo Gartenberg et al., Appellants, v. St. Paul Fire and Marine Insurance Company, Respondent

Appellate Division of the Supreme Court of the State of New York, First Department.

September 26, 1972


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...

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