Solomon Holding Corp. v Golia

Solomon Holding Corp. v Golia 2008 NY Slip Op 08274 [55 AD3d 507] October 30, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 10, 2008

Solomon Holding Corp., Appellant,
v
Peter Golia et al., Respondents, et al., Defendants.

—[*1] Law Offices of Jay S. Markowitz, P.C., Kew Gardens (Jay S. Markowitz of counsel), for appellant.

Char & Herzberg LLP, New York (Edward M. Char of counsel), for respondents.

Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered August 21, 2007, which, in an action to foreclose a mortgage, denied plaintiff's motion for summary judgment and granted defendants-respondents' cross motion to amend their answer so as to add the affirmative defense of statute of limitations and, upon amendment, for summary judgment dismissing the complaint, unanimously affirmed, without costs.

On appeal, plaintiff does not argue that the statute of limitations had not run before commencement of the action, but only that defendants should not be permitted to invoke the statute of limitations because they did not plead it in their answer and then waited 19 months before finally seeking to interpose it. Plaintiff, however, does not show, or even claim, prejudice or surprise resulting directly from defendants' delay in asserting the statute of limitations. Absent such showing, defendants' cross motion to amend was properly granted (CPLR 3025 [b]; see Seda v New York City Hous. Auth., 181 AD2d 469, 470 [1992], lv denied 80 NY2d 759 [1992], citing, inter alia, Fahey v County of Ontario, 44 NY2d 934 [1978]). Concur—Tom, J.P., Nardelli, Sweeny, McGuire and DeGrasse, JJ. [See 2007 NY Slip Op 32472(U).]