Eschen Steel & Iron Works Co. v. John T. Brady & Co.

— Order, Supreme Court, New York County (Sutton, J.), entered December 2,1980 denying plaintiff’s motion for summary judgment and dismissing the complaint, is unanimously modified, on the law, to the extent that the complaint is reinstated, and the order is otherwise affirmed, without costs. Special Term on its own motion dismissed the complaint as time barred, in essence granting summary judgment to defendants. This was error, at least on the present state of the pleadings. “A defense consisting of new matter must be pleaded and summary judgment may not be granted to a defendant dismissing…