Opinion
570815/03.
Decided October 26, 2004.
Plaintiff appeals from an order of the Civil Court, New York County, entered April 9, 2002 (Carol R. Edmead, J.) which, upon a search of the record, granted defendant summary judgment dismissing the complaint on Statute of Limitations grounds.
Order entered April 9, 2002 (Carol R. Edmead, J.) reversed, with $10 costs, complaint reinstated and the matter remanded for de novo consideration of defendant's motion for summary judgment and related relief.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM P. McCOOE, HON. MARTIN SCHOENFELD, Justices.
This 1995 action, commenced in Supreme Court and transferred to Civil Court pursuant to CPLR § 325-d, seeks to recover moneys allegedly loaned to defendant in two separate transactions dating back to 1982 and 1983. The motion court erred when it, sua sponte, granted defendant summary judgment dismissing the complaint on Statute of Limitations grounds. That defense, although pleaded in defendant's answer and unsuccessfully raised by defendant in an earlier, pre-answer motion to dismiss ( Zarintash v. Kopple, 234 AD2d 105), was unaddressed in defendant's present motion seeking, inter alia, summary judgment on the basis of an accord and satisfaction and the Statute of Frauds. The court's unrequested grant of relief improperly eliminated the defendant's initial burden of establishing that the time to sue has expired ( see Town of Hempstead v. Lizza Indus., Inc., 293 AD2d 739) and denied plaintiff a meaningful opportunity to argue the issue ( see Mendez v. Steen Trucking, Inc., 254 AD2d 715). Nor, on the merits, is any showing made that the parties' deposition testimony — cited by the court as a basis for dismissing the action as time barred — served to resolve the issues of fact that the Appellate Division previously found to exist herein "as to the applicability of the Statute of Limitations" ( Zarintash v. Kopple, 234 AD2d at 106).
This constitutes the decision and order of the court.