115 Austin Ave, LLC v. City of Yonkers

In an action, inter alia, to recover damages for an alleged taking of real property, the plaintiff appeals from an order of the Supreme Court, Westchester County (Jamieson, J.), dated March 29, 2006, which granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint on the ground that it was barred by the statute of limitations. Ordered that the order is affirmed, with costs. The defendant made a prima facie showing of entitlement to judgment as a matter of law, and the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The plaintiff’s sole contention on appeal is that the defendant waived its statute of limitations defense by failing to make a preanswer motion to dismiss the complaint on that ground and by failing to assert it in the answer (see CPLR 3211 [a] [5]; [e]). We disagree. Pleadings are to be liberally construed, and if there is any doubt regarding the availability of a defense, the pleader “ ‘is entitled to the benefit of every reasonable intendment of the pleading’ ” (Brodeur v Hayes, 305 AD2d 754, 755 [2003], quoting Warwick v Cruz, 270 AD2d 255, 255 [2000]). Fairly read, the answer clearly placed the plaintiff on notice that the timeliness of this action was in controversy. Miller, J.P, Spolzino, Florio and Angiolillo, JJ., concur.