Pisano v. Stockel ( 1981 )

In an action to recover damages based upon alleged fraud and misrepresentation, defendants appeal from an order of the Supreme Court, Suffolk County, entered January 22, 1979, which denied their motion to dismiss the complaint as barred by the Statute of Limitations. Order affirmed, without costs or disbursements, with leave to defendants to assert the Statute of Limitations in their answers. Defendants’ time to serve their answers is extended until 20 days after service upon them of a copy of the order to be made hereon, together with notice of entry thereof. Both parties submitted extensive extrinsic proof at Special Term in conjunction with defendants’ motion, pursuant to CPLR 3211 (subd [a], par 5), to dismiss the complaint as barred by the Statute of Limitations. Having been presented with such proof, Special Term could have given the parties notice and treated the motion as one for summary judgment (see CPLR 3211, subd [c]) and thus disposed of the Statute of Limitations question on the papers and any additional matter submitted or by a hearing (see CPLR 3212, subd [c]). On the instant papers, there is a question of fact as to the time plaintiffs’ claims accrued and the discovery of the alleged fraud. Under the circumstances, the defendants should be given the opportunity to preserve the issue by inserting it in their answers. Titone, J. P., Lazer, Mangano and Weinstein, JJ., concur.