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.’’
Here, defendant’s counterclaim arose out of the same occur-
rence upon which a claim asserted in the complaint depends.
Consequently, the cause of action in defendant’s counterclaim
based on assault and battery is not time-barred to the extent of
the demand in the complaint (see Davis v Davis, 95 AD2d 674,
675 [1983] [interpreting former CPLR 203 (c), now CPLR 203
(d)]), notwithstanding that it was barred at the time the claims
asserted in the complaint were interposed (see Mintz & Fraade,
P.C. v Docuport, Inc., 110 AD3d 496 [2013]). However, we note
that ‘‘ ‘[t]he provisions of CPLR 203 (d) allow a defendant to as-
sert an otherwise untimely claim which arose out of the same
transactions alleged in the complaint . . . only as a shield for
recoupment purposes, and do[ ] not permit the defendant to
obtain affirmative relief’ ’’ (Carlson v Zimmerman, 63 AD3d
772, 774 [2009], quoting DeMille v DeMille, 5 AD3d 428, 429
[2004]).
We further note that, to the extent defendant’s counterclaim
asserts a cause of action for personal injury based on negligence,
it was timely, as it was interposed within three years from the
time it accrued (see CPLR 214 [5]). Thus, should defendant be
able to establish such a cause of action, any recovery thereon
would not be limited by CPLR 203 (d).
88 46 MISCELLANEOUS REPORTS, 3d SERIES
Finally, we find that the counterclaim sufficiently states a
cause of action (see Leon v Martinez, 84 NY2d 83 [1994]).
Accordingly, the order is affirmed.
PESCE, P.J., and ELLIOT, J., concur; SOLOMON, J., taking no
part.
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Abstracts of Appellate Term Cases