Opinion
May 20, 1971
Appeal from an order of the Supreme Court at Special Term, entered July 23, 1970 in Broome County, which denied a motion to dismiss the complaint. Respondents seek damages for personal injuries sustained by them in an accident occurring on February 4, 1968 on appellant's premises. On March 19, 1968 respondents filed a notice of claim with appellant, and on April 15, 1969 commenced this action by service of the summons and complaint. On August 8, 1969 appellant served its answer which did not contain any affirmative defense alleging the Statute of Limitations. Appellant's motion for a dismissal of the complaint on the ground that respondents failed to comply with subdivision 2 of section 157 Pub. Hous. of the Public Housing Law which requires that an action against a housing authority shall be commenced within one year after the cause of action shall have accrued has been denied. ( Hlanko v. New York City Housing Auth., 23 A.D.2d 840, affd. 19 N.Y.2d 937.) The motion to dismiss the complaint on the ground that the cause of action may not be maintained because of the Statute of Limitations must be made before service of the responsive pleading. (CPLR 3211, subd. [e].) Here, the responsive pleading was served on August 8, 1969, and the motion to dismiss was made on May 15, 1970. Since the motion was not made "before the service of the responsive pleading", it was not timely, and was properly denied. (Cf. Gauthier v. Village of Larchmont, 30 A.D.2d 303, mot. for lv. to app. den. 22 N.Y.2d 646; Wahrhaftig v. Space Design Group, 29 A.D.2d 699.) Order affirmed, with costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.