Day v. Rudolph

Supreme Court, New York County (Milton A. Tingling, J.), entered February 23, 2005, which, in an action for personal injuries arising out of an automobile accident, granted defendant’s postanswer motion to dismiss the complaint as barred by the statute of limitations, and denied plaintiff’s cross motion to dismiss defendant’s affirmative defense of the statute of limitations, unanimously affirmed, without costs.

Defendant’s answer asserted the statute of limitations as an affirmative defense. Assuming, without deciding, that the answer was late, we would deem it timely interposed under the circumstances presented (CPLR 3012 [d]). Accordingly, the action was properly dismissed as time-barred. Concur—Tom, J.P., Friedman, Sullivan, Gonzalez and Catterson, JJ.