In Zito v. County of Suffolk, 81 AD3d 722, 916 N.Y.S.2d 611 [2d Dept., 2011], the County of Suffolk made a motion to dismiss pursuant to CPLR 3211 (a) (1), (5) and (7) based on the statute of limitations and the statute of frauds.
The lower court denied the motion.
The lower court also denied the County's subsequent motion to amend its answer to assert the same affirmative defenses.
The Appellate Division reversed, finding that the order denying the County's CPLR 3211 dismissal motion did not determine, as a matter of law, that the affirmative defenses had no merit.
The Appellate Division granted the County's motion to amend its answer to assert the same affirmative defenses.