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This article is part of our ongoing amendments coverage, with 5 published articles analyzing amendments issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
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.”
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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.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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