Unpleaded defense can serve as basis to move for summary judgmemnt

J.K.M. Med. Care, P.C. v Liberty Mut. Fire Ins. Co., 2016 NY Slip Op 51071(u)(App. Term 2d Dept. 2016)

“The rule is that “an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party” (Sullivan v American Airlines, Inc., 80 AD3d 600, 602 ). Here, defendant failed to include res judicata as an affirmative defense in its answer, or to move to dismiss the complaint on that ground pursuant to CPLR 3211 (a) (5) prior to serving its answer. Its remedy then was to move pursuant to CPLR 3025 (b) for leave to amend its answer in order to include that defense. Defendant never explicitly so moved and instead moved for summary judgment based on res judicata and also sought “such other and further relief as may deem just and proper.” As plaintiff, in opposition to defendant’s motion, failed to allege any prejudice (see Barrett v Kasco Constr. Co., 84 AD2d 555, 556 , affd 56 NY2d 830 ) or surprise (see CPLR 3018 ; Rogoff v San Juan Racing Assn., 54 NY2d 883, 885 ; Renelique v State-Wide Ins. Co., 50 Misc 3d 137, 2016 NY Slip Op 50096 ) resulting from defendant’s seeking summary judgment based on that unpleaded affirmative defense, under the circumstances, and in the interest of justice, we deem defendant’s answer amended to include the affirmative defense of res judicata”

The more expedient thing would be to plead all potential affirmative defenses in the initial answer.  An argument could be made that it is not proper to allege affirmative defenses that are not applicable.  Yet, the failure to plead anything under the sun leads to these types of cases.  It is better to plead everything that seems relevant and to let the adversary move to dismiss the affirmative defenses as lacking merit.  See e.g.  AutoOne Ins. Co. v Eastern Is. Med. Care, P.C., 2016 NY Slip Op 05354 (2d Dept. 2016)

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Legal Update (February 2026): Since this 2016 decision, the CPLR provisions governing pleading amendments and summary judgment practice may have been subject to legislative amendments or rule changes. Additionally, subsequent appellate decisions may have further refined the standards for raising unpleaded defenses in summary judgment motions, particularly regarding the prejudice and surprise analysis discussed in this case. Practitioners should verify current CPLR 3025, 3018, and 3211 provisions and review recent case law developments in this area.