Summary judgment denied based upon the failure to plead the "emergency doctrine" as an affirmative defenseApril 3, 2010

Franco v G. Michael Cab Corp., 2010 NY Slip Op 02744 (2d Dept. 2010)

“The defendant could not properly rely on the emergency doctrine in support of its motion. Since the defendant failed to plead the emergency doctrine as an affirmative defense in its answer, and the facts relating to the emergency were known only to the defendant and Badrane, the motion raised new issues of fact not appearing on the face of the pleadings, which resulted in unfair surprise to the plaintiff.”

This is interesting because the trend in the case law has been to either excuse unpleaded affirmative defenses or to almost always grant a motion to amend the complaint to plead the affirmative defense, provided the proposed affirmative defense has merit.  There was a no-fault case a year ago – its name escapes me now – where the Appellate Term, Second Department held, point blank, that the failure to plead an affirmative defense or move to amend the complaint to include the proposed affirmative defense was of no moment.

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