Q: Why would a court allow a notice of motion and the court schedule a date. if the Statue of Limitations has lapsed in NY?
Received a notice of motion about a breach of contract that occurred in 2011 in NY. in my mailbox. Not certified, no name, just return address saying that I need to appear? Sent back certified and to court (originals) an Affidavit to dismiss based on Statue Of Limitations. Still have a date. What if I do not appear?
A: If you don’t appear, a default judgment will be entered against you, regardless of the merits of the case. The judgment creditor could then proceed to levy your bank accounts and seek a turnover of the funds to the NYC Marshall to satisfy the judgment. The statute of limitations for rent arrears was recently reduced to 3 years under the Consumer Credit Fairness Act. However, if you don’t raise your SOL defense in your answer or in your motion to vacate a default judgment, and appear in the action, you will be deemed to waive this and all other defenses you don’t include in your answering papers or motion. Consider retaining an attorney to help you navigate your issues.
Steven Warren Smollens agrees with this answer
1 user found this answer helpful
Well if you were not sued in 2011 for this landlord and tenant breach of contract, it is way too late to do so now. A Notice of Motion for a judgment suggests the lawsuit existed before the Statute of Limitations expired.
But if you were sued in 2011 a complaint (that is the body of the lawsuit and came together with the summons) must be responded to with an Answer. Did you even Answer the complaint?
If not, then now you are in "default" and your right to answer and raise defenses including statute of limitations is suspended until you convince the Motion Court why you did not respond to the original complaint when you were sued and that you have a defense to the legal claim of breach of contract as well.
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