GROSS SHUMAN BRIZDLE GILFILLAN v. BAYGER (1998)

 Supreme Court did not abuse its discretion in denying that part of the cross motion of defendant to amend his answer to plead the Statute of Limitations as an affirmative defense.   The failure to assert the Statute of Limitations in a motion to dismiss or in the answer constitutes a waiver of that affirmative defense (see, CPLR 3211[e];  Matter of Augenblick, 66 N.Y.2d 775, 777, 497 N.Y.S.2d 363, 488 N.E.2d 109, rearg. denied 67 N.Y.2d 647, 499 N.Y.S.2d 1031, 490 N.E.2d 558;  Itzkowitz v. Town Bd., 139 A.D.2d 932, 527 N.Y.S.2d 915).   Although leave to amend a pleading should be liberally granted in the absence of surprise or prejudice (see, Olean Urban Renewal Agency v. Herman, 101 A.D.2d 712, 713, 475 N.Y.S.2d 955), where, as here, there has been a lengthy, unexplained delay in asserting the defense and the facts underlying the defense were known to defendant at the inception of the action, we cannot conclude that the court abused its discretion in denying the motion (see, Rose v. Velletri, 202 A.D.2d 566, 567, 612 N.Y.S.2d 583).

 The court properly denied that part of the cross motion of defendant seeking summary judgment dismissing the complaint on the ground that he did not breach the agreement.   Defendant did not carry his burden of establishing that his construction of the agreement “is the only construction which can fairly be placed thereon” (Utica Carting, Stor. & Contr. Co. v. World Fire & Mar. Co., 277 App.Div. 483, 488, 100 N.Y.S.2d 941, quoted in Dowdle v. Richards, 2 A.D.2d 486, 489, 157 N.Y.S.2d 36;  see also, St. Mary v. Paul Smith's Coll. of Arts & Sciences [appeal No. 1], 247 A.D.2d 859, 668 N.Y.S.2d 813).

Order unanimously affirmed without costs.

MEMORANDUM: