Key Takeaway
Court denies summary judgment when defendant failed to plead emergency doctrine as affirmative defense, highlighting importance of proper pleading requirements.
Affirmative defenses serve as a defendant’s shield against liability, but they must be properly raised in the answer or risk being waived. The emergency doctrine—which can excuse what would otherwise be negligent conduct when a driver faces a sudden, unexpected situation—is one such defense that requires careful pleading. A recent Second Department decision illustrates the consequences of failing to raise this defense properly, even when courts have become increasingly lenient about unpleaded affirmative defenses.
The case also demonstrates how procedural missteps can undermine otherwise valid legal arguments, particularly when the facts supporting the defense are uniquely within the defendant’s knowledge and would create unfair surprise for the opposing party.
Jason Tenenbaum’s Analysis:
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.
Key Takeaway
Despite the general trend toward leniency regarding unpleaded affirmative defenses, courts will still enforce pleading requirements when defendants attempt to raise defenses based on facts uniquely within their knowledge. The Franco decision emphasizes that proper procedural compliance remains crucial, especially when raising the defense would create unfair surprise for the plaintiff who had no opportunity to discover or prepare for such arguments.
