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115 AUSTIN AVE, LLC, Appellant, v. CITY OF YONKERS, Respondent.

Ordered that the order is affirmed, with costs.

The defendant made a prima facie showing of entitlement to judgment as a matter of law, and the plaintiff failed to raise a triable issue of fact ( see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The plaintiff's sole contention on appeal is that the defendant waived its statute of limitations defense by failing to make a preanswer motion to dismiss the complaint on that ground and by failing to assert it in the answer ( see CPLR 3211 [a] [5]; [e]). We disagree. Pleadings are to be liberally construed, and if there is any doubt regarding the availability of a defense, the pleader "`is entitled to the benefit of every reasonable intendment of the pleading'" ( Brodeur v Hayes, 305 AD2d 754, 755, quoting Warwick v Cruz, 270 AD2d 255, 255). Fairly read, the answer clearly placed the plaintiff on notice that the timeliness of this action was in controversy.

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AUSTIN v. CITY OF YONKERS
(Feb 20, 2007)