115 AUSTIN AVE, LLC v. CITY OF YONKERS


37 A.D.3d 684 (2007)

830 N.Y.S.2d 355

115 AUSTIN AVE, LLC, Appellant, v. CITY OF YONKERS, Respondent.

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

Decided February 20, 2007.


Ordered that the order is affirmed, with costs.

The defendant made a prima facie showing of entitlement to judgment as a matter of law, and the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]). The plaintiff's sole contention on appeal is that the defendant waived its statute of limitations defense by failing to make a preanswer motion to dismiss the complaint on that ground and by failing to assert it in the answer (see CPLR 3211 [a] [5]; [e]). We disagree. Pleadings are to be liberally construed, and if there is any doubt regarding the availability of a defense, the pleader "`is entitled to the benefit of every reasonable intendment of the pleading'" (Brodeur v Hayes, 305 A.D.2d 754, 755 [2003], quoting Warwick v Cruz, 270 A.D.2d 255, 255 [2000]). Fairly read, the answer clearly placed the plaintiff on notice that the timeliness of this action was in controversy.


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