Opinion
October 24, 1994
Appeal from the Supreme Court, Nassau County (Saladino, J.).
Ordered that the order is affirmed, without costs or disbursements.
In this action which was commenced in District Court, Suffolk County, the third-party defendant, David Laudani, interposed a counterclaim against the third-party plaintiff, Michael V. Kelly, which was clearly time-barred. Kelly did not serve a reply to the counterclaim, as he was not required to do so (see, UDCA 907 [a]), nor did he make a prereply motion to dismiss the counterclaim based on the Statute of Limitations (see, UDCA 1002). However, under the circumstances of this case, where there is no indication in the record of any surprise or prejudice, the Supreme Court properly granted Kelly's motion for summary judgment dismissing the counterclaim as time-barred (see, Terry Contr. v. State of New York, 27 A.D.2d 499; Hill v State of New York, 29 A.D.2d 824; Rothfeld v. Lintz, 36 Misc. 220; see also, Barrett v. Kasco Constr. Co., 84 A.D.2d 555, affd 56 N.Y.2d 830; Hickey v. Hutton, 182 A.D.2d 801; Seda v. New York City Hous. Auth., 181 A.D.2d 469). Bracken, J.P., Copertino, Joy and Altman, JJ., concur.