Court reviews use the Statute of Limitation Defense in a boilerplate paragraph – Call to the Court of Appeals?

Failure to follow procedural rules can have a detrimental effect on a case.  Recently, the New York Appellate Division, First Department held that the statute of limitations would not bar the plaintiff’s action because the defendant did not assert the defense in accordance with the format required by New York Civil Procedure Rule governing pleadings, CPLR §3040.  The rule provides that each affirmative defense asserted should be numbered and labeled in a responsive pleading.

Scholastic Inc. v. Pace Plumbing Corp. (2015 NY Slip Op 03489)

Failure to follow procedural rules can have a detrimental effect on a case.  Recently, the New York Appellate Division, First Department held that the statute of limitations would not bar the plaintiff’s action because the defendant did not assert the defense in accordance with the format required by New York Civil Procedure Rule governing pleadings, CPLR §3040.  The rule provides that each affirmative defense asserted should be numbered and labeled in a responsive pleading.  In this case, the defendant’s pleading in response to the plaintiff’s complaint was drafted using a boilerplate paragraph that contained a number of defenses that were general and, for the most part, inapplicable.  The court found that the plaintiff was prejudiced because proper notice of the defense was not provided.

The case concerned a plumbing company that performed work on a mixed use building.  The plaintiff alleged over $1.5 million in damages due to a water pipe breakage caused by the negligence of the company that installed and maintained the plumbing system.  Although the defendant attempted to use the statute of limitations to bar the plaintiff’s action because it was commenced six years after the completion of the company’s work, the defense was concealed in the middle of a list of 16 different affirmative defenses which were, for the most part, baseless.  The court cited another case which reasoned that “neither the plaintiff nor the court ought to be required to ‘be compelled to wade through a mass of verbiage and superfluous matter.’”  In effect, the court would not allow the defendant to assert every possible defense that could exist because that would exempt the defendant  from complying with the CPLR and “sanction deception.”

The court allowed the prejudice caused by boilerplate provision to be cured by permitting the defendant an opportunity to amend its pleading.  The issue was remanded back to the lower court for further findings regarding the time frame in which the action was commenced.

Noteworthy in this case was the call in the majority opinion call for the Court of Appeals to “revisit” the question — one not heretofore thought worthy of substantial debate by either legal scholars or the appellate courts of this state — of “whether a conclusory [pleading of the] statute of limitations defense is adequate in all cases.” Notwithstanding that the Court of Appeals expressly held more than 30 years ago that the CPLR does not require the pleading of the statute of limitations to specify “the statutory section relied on or . . . the applicable period of limitations” (Immediate v St. John’s Queens Hosp., 48 NY2d 671, 673 [1979]), the majority opinion suggested a new requirement that an answer pleading the statute of limitations specify the applicable limitation period.

Two Justices signed a concurring opinion that argued the phrase “statute of limitations,” without any mention of the statute or time period relied upon, was a sufficient pleading of that defense.

It will be interesting to see whether the Court of Appeals accepts the invitation of the majority to review this issue.

Click here to read the court’s full decision.

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