In 1979, the Court of Appeals issued its ruling in Immediate v. St. John Queens Hospital, 48 N.Y.2d 671 (1979), wherein the Court held that a bare assertion of a statute of limitations defense in an answer would be sufficient to withstand the pleading particularity requirements of CPLR 3013. 48 N.Y.2d at 673. Recently, the First Department suggested that it was time for the high court to revisit the issue.
In Scholastic Inc. v. Pace Plumbing Corp., 8 N.Y.3d 143 (1st Dep’t 2015), the First Department considered a lower court order granting summary judgment dismissing a property damage case. In the case, the defendant had filed an answer containing a single, catch-all paragraph containing 15 affirmative defenses, including a statute of limitations defense. While the lower court dismissed the statute of limitations defense as improperly pleaded, it still dismissed the action on the merits.
On appeal, the First Department reconsidered the sufficiency of the statute of limitations defense. It agreed that the defense was improperly pleaded in that it was not separately numbered and it was included in a catch-all paragraph, thus leaving plaintiff with no “requisite notice” of the claim against it. Notwithstanding, the First Department then determined that the CPLR’s mandate to construe pleadings liberally required a reversal. The First Department held that any prejudice to plaintiff could be easily cured by allowing the defendant to replead the defense properly and allowing the plaintiff to conduct targeted discovery on the limitations defense.
More important, however, was the First Department’s discussion of the particularity requirement. In its opinion, the Court noted that the trial court had not referred to Immediate in determining that the pleading did not meet the particularity requirement of CPLR 3013. The First Department pointed out that Immediate had established a relatively lax standard whereby the defendant “was not required to identify the statutory section relied upon or to specify the applicable period of limitations” (quoting Immediate, 48 N.Y.2d at 673). The First Department cautioned that that there was a “lack of clarity” as to whether a conclusory statement of the defense was appropriate in all cases. This lack of clarity arises because Immediate established a particularity requirement that was even less than the Official Form 17 model limitations defense setting forth the period of limitations (“[t]he cause of action set forth in the complaint did not accrue within six years next before the commencement of this action”), but the Court of Appeals did not expressly state that it was abrogating Official Form 17. (A copy of Official Form 17 can be found at D. Siegel, New York Practice, Sec. 228 at 390 (West 5th Ed).) Thus, the First Department argues, it is not clear whether Immediate should apply in all circumstances, or only in cases where the plaintiff would not be overly prejudiced by a conclusory statement of the limitations defense.
The suggestion by the First Department that a 36 year old opinion needs clarification is important. It is not every day that the Appellate Division suggests to the Court of Appeals that it is time to revisit a long-standing precedent, especially on the grounds that it is unclear what the Court of Appeals meant. The tone of the Scholastic decision clearly signals the First Department’s belief that, at a minimum, the Immediate pleading standard was not meant to be all-inclusive and should be applied on a case-by-case basis. More appropriately, I suspect, the First Department is signalling that it would prefer the Immediate opinion (“a cursory, unsigned memorandum . . . [that] did not explain its rationale or cite any authority”) be overturned entirely and that the pleading standard revert back to the one set forth in Official Form 17 (which requires, at a minimum, a statement of the specific limitations period).
While there is no indication at present that the Court of Appeals will take up this invitation, the opinion would appear to give safe harbor to judges dismissing conclusory statute of limitations defenses if a reasonable argument can be made that prejudice to the plaintiff resulted from the filing.