Camp Shiloh, Inc. v. County of Sullivan

—Carpinello, J. Appeal from an order of the Supreme Court (Kane, J.), entered January 20, 2000 in Sullivan County, which granted plaintiffs motion for summary judgment. In this plenary action to recover moneys had and received by defendants, defendant County of Sullivan appeals from an order of Supreme Court granting plaintiff summary judgment, contending that this action is barred by the Statute of Limitations. Fundamentally, however, a party must raise the legal argument of Statute of Limitations in its answer to a complaint or in a preanswer motion to dismiss (see, CPLR 3211 [a] [5]; [e]) and the failure to do so constitutes a waiver thereof (see, Dougherty v City of Rye, 63 NY2d 989, 991; Mendez v Steen Trucking, 254 AD2d 715, 716). Because the County neither pleaded the Statute of Limitations as an affirmative defense in its answer nor moved to dismiss on that ground, it has waived it as a defense (see, id.; see also, Matter of Ferrigan v Thompson, 135 AD2d 953, appeal dismissed 72 NY2d 854). There being no other legal issue before this Court, we therefore affirm Supreme Court’s order. Crew III, J. P., Peters, Spain and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs.