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AdviceSeeker2014

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  1. Here's another twist to the question: The original complaint filed in December 2013, but instead of an answer filed within the initial period, a motion to dismiss was filed. It took a judge seven months to decide on the motion to dismiss, and the judge granted 20 days to file the answer (with counterclaims). During that 20 days, would the "clock" for the counterclaims go back to the original clock, from the original time to file the answer? That is, instead of one year back (July 2014-July 2013), would the counterclaims be able to go all the way back to December 2012 or January 2013? (Essentially tolling the time during the time the judge took to decide on the motion to dismiss). I haven't found case law on that one yet, and CPLR 203(d) itself doesn't seem to answer that.
  2. Here is another interpretation I found. I guess I don't know how the court would define the "same facts and circumstances alleged in the complaint". "Notwithstanding the expiration of time under the statute of limitations, if a counterclaim was not time-barred at the time the original complaint was filed, it may be asserted during the pendency of that action. CPLR 203(d). A counterclaim that was time-barred at the time the original complaint was filed may nonetheless be asserted during the pendency of that action if the counterclaim arises out of the same facts and circumstances alleged in the complaint. Such counterclaims can be pursued only to the extent of the demand within the complaint. CPLR 203(d)."
  3. Thank you, PG1067. You understood my question the best, I believe. My apologies if my query was clumsily worded. Upon researching the statute you suggested, CPLR 203(d), which I could not interpret myself, I found also a case which seemed to clarify the answer to what I was looking for. It seems one can file the counterclaim using the same "clock" the original plaintiff had, but not for the purposes of obtaining relief, and only if arising from the same transaction as the original complaint. Since my counterclaim of defamation is not the same incident of defamation (plaintiff claims I defamed him, but plaintiff also defamed me), I interpret it to mean I would have to go back to my regular SOL for my counterclaim (my counterclaim with answer is filed 8 months after original complaint against me was filed), or, one year from my counterclaim. Here is what I found: CPLR 203 (d) provides: "Defense or counterclaim. A defense or counterclaim is interposed when a pleading containing it is served. A defense or counterclaim is not barred if it was not barred at the time the claims asserted in the complaint were interposed, except that if the defense or counterclaim arose from the transactions, occurrences, or series of transactions or occurrences, upon which a claim asserted in the complaint depends, it is not barred to the extent of the demand in the complaint notwithstanding that it was barred at the time the claims asserted in the complaint were interposed." The provisions of CPLR 203 (d) allow a defendant to assert an otherwise untimely claim which rose out of the same transactions alleged in the complaint, but only as a shield for recoupment purposes, and do not permit the defendant to obtain affirmative relief. (Bloomfield, supra; Rosenblatt v Ackoff-Ortega, 300 AD2d 137 [2002]; Rothschild v Industrial Test Equip. Co., 203 AD2d 271 [1994]; Sawyer v Wight, 196 F Supp 2d 220{**20 Misc 3d at 353} [2002]; DeMille v DeMille, 5 AD3d 428 [2004], after remand 32 AD3d 411 [2006].)
  4. Can anyone point me to the CPLR that would tell me definitively what the SOL would be for filing a counterclaim in a defamation suit in NYS? The counterclaims include defamation. Normally the SOL would be 1 year, but I have been told by two attorneys that the plaintiff on the counterclaim would get the same "clock" as the original plaintiff - that is, 1 year back from the date the original plaintiff filed their claim. (For example, if I file my counterclaim in June 2014 but the original suit was filed in December 2013, is my SOL "clock" for my counterclaim from June 2013, or is it from December 2012?). Other attorneys disagree and say that the SOL would be 1 year no matter what.
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