Many litigants are familiar with the well-settled rule that an affirmative defense will be waived if it is not included in a CPLR 3211(a) motion to dismiss or in the answer (see CPLR 3211[e]).   And so, lawyers tasked with drafting an answer will often consult a “checklist” to ensure that all relevant affirmative defenses are sufficiently pleaded.  CPLR 3018(b) contains the following, non-exhaustive list of defenses that should be affirmatively pleaded in an answer:

  • Arbitration and award
  • Collateral Estoppel
  • Culpable conduct of the plaintiff under CPLR Article 14-A
  • Discharge in bankruptcy
  • Illegality
  • Fraud
  • Infancy or other disability of the defendant
  • Payment
  • Release
  • Res Judicata
  • Statute of Frauds
  • Statute of limitations

But, CPLR 3018(b) defines “affirmative defense” robustly as: (i) any matter “which if not pleaded would be likely to take the adverse party by surprise,” or (ii) any matter which “raises issues of fact not appearing on the face of a prior pleading.”  So, defenses other than those listed above have been held to be “affirmative defenses” which must be affirmatively pleaded in the answer, lest they be waived (see Fossella v Dinkins, 66 NY2d 162 [1985] [standing to sue]; Falco v Pollitts, 298 AD2d 838 [4th Dept 2002] [adverse possession]; Fregoe v Fregoe, 33 AD3d 1182 [3d Dept 2006] [truth in a defamation action]).

Nevertheless, courts will, on rare occasions, allow a party to introduce an unpleaded defense on a motion for summary judgment. This is based on the theory that a later amendment of the answer could properly introduce the defense, and that something as drastic as summary judgment should not be predicated on a pleading omission that a simple amendment could correct.

The Suffolk County Commercial Division (Emerson, J.) recently illustrated this principle in Board of Mgrs. of Manhasset Med. Arts Condominium v Integrated Med. Professionals, PLLC, 2019 NY Slip Op 51588(U) (Sup Ct, Suffolk County Oct. 8, 2019). Plaintiff, the owner of eight units in a professional medical condominium, commenced an action against a tenant (among others), alleging that the defendant tenant defaulted under the parties’ lease agreement by failing to pay rent for several months.  After the defendant interposed an answer and cross-claims, the plaintiff moved for summary judgment. The defendant opposed the motion, asserting a “partial-constructive-eviction” defense, and cross-moved for leave to amend its answer to assert two counterclaims against the plaintiff.

On reply, the plaintiff argued that the Court should reject the defendant’s partial-constructive-eviction defense because it was not pleaded as an affirmative defense in the defendant’s answer.  However, Justice Emerson permitted the defense, reiterating the principle that “[a]n unpleaded defense may be invoked to defeat a summary-judgment motion, or to serve as the basis for an affirmative grant of such relief, in the absence of surprise or prejudice, provided that the opposing party has a full opportunity to respond thereto.”

The absence of prejudice or surprise to the plaintiff was the key factor for Justice Emerson in permitting the defendant’s partial-constructive-eviction defense.  Indeed, the plaintiff did not argue that it would be surprised or prejudiced by the defense, and even “fully addressed” the defendant’s partial-constructive-eviction defense in its reply papers.  And so, in the Court’s view, the plaintiff could hardly contend it would be prejudiced or surprised by the defense.

The Takeaway:

Courts will, from time-to-time, consider an unpleaded defense if the adverse party has notice of it through channels other than the answer.  However, a litigant should not depend on judicial discretion to raise a defense on the hope that the defense will be introduced into the case without having been affirmatively pleaded.  A savvy litigator should keep a robust checklist of affirmative defenses, which should include the affirmative defenses listed in CPLR 3018(b), as well as the grounds for dismissal under CPLR 3211(a).  If, however, a litigant fails to raise a particular defense in its answer or CPLR 3211(a) motion, the defendant may still have hope of raising the defense at the summary judgment stage, so long as the defense does not take the adverse party by surprise.