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ALPHA GMBH & CO. v. BIP INDUSTRIES CO.

25 A.D.3d 344 (2006)

807 N.Y.S.2d 73

ALPHA GMBH & CO. SCHIFFSBESITZ KG, Respondent, v. BIP INDUSTRIES CO., Appellant.

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

January 5, 2006.

Defendant's failure to plead fraudulent concealment in its answer does not bar that defense, where defendant did not learn of the defense until some two years after it filed its answer. It could not in any event have moved for leave to amend since for most of the two-year period the action was stayed pending an arbitration between its subsidiary and plaintiff. When it did raise the defense in its cross motion for summary judgment...

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