Orix Fin. Servs., Inc. v Haynes

Orix Fin. Servs., Inc. v Haynes 2008 NY Slip Op 09270 [56 AD3d 377] November 25, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

Orix Financial Services, Inc., Formerly Known as Orix Credit Alliance, Inc., Appellant,
v
Macon T. Haynes, Respondent.

—[*1] Davidoff Malito & Hutcher LLP, New York (Lewis M. Smoley of counsel), for appellant.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered September 6, 2007, which, in an action on a "conditional sale contract note," denied plaintiff's unopposed motion pursuant to CPLR 3215 for a default judgment and sua sponte dismissed the complaint as barred by the statute of limitations, unanimously reversed, on the law, without costs, the motion granted, and the matter remanded for further proceedings including entry of judgment.

The statute of limitations must be pleaded as an affirmative defense and cannot be asserted sua sponte by the court as a basis for denying an unopposed motion for a default judgment (see Buckeye Retirement Co., L.L.C., Ltd. v Lee, 41 AD3d 183, 184 [2007]). We have reviewed plaintiff's submissions on the motion and find them sufficient for purposes of CPLR 3215. Concur—Lippman, P.J., Gonzalez, Moskowitz, Acosta and Renwick, JJ.