Unpleaded affirmative defense is sufficient

Metro Health Prods., Inc. v Nationwide Ins., 2016 NY Slip Op 51122(U)(App. Term 2d Dept. 2016)

“Nationwide had no basis to assert the defenses of collateral estoppel and res judicata before January 28, 2013, when the declaratory judgment was entered in the Supreme Court (see Renelique v State-Wide Ins. Co., 50 Misc 3d 137, 2016 NY Slip Op 50096 ). While plaintiff contended in the Civil Court that Nationwide had failed to move to amend its answer, the answer may be deemed amended to include the affirmative defenses of collateral estoppel and res judicata (see Barrett v Kasco Constr. Co., 84 AD2d 555 , affd 56 NY2d 830 ), and a waiver of such defenses (see CPLR 3211 ) will not result where, as here, the defendant’s failure to assert the defenses in its answer did not take the plaintiff by surprise (see Renelique, 50 Misc 3d 137, 2016 NY Slip Op 50096; see e.g. Olean Urban Renewal Agency v Herman, 101 AD2d 712, 713 ; see also Rogoff v San Juan Racing Assn., 77 AD2d 831 , affd 54 NY2d 883 ). We note that, notwithstanding plaintiff’s conclusory assertion of prejudice, an examination of the record reveals none. “Indeed, 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 ; see also Lerwick v Kelsey, 24 AD3d 918, 919 ; Allen v Matthews, 266 AD2d 782 )” (Renelique, 50 Misc 3d 137, 2016 NY Slip Op 50096, *1).

Consequently, in light of the Supreme Court’s declaratory judgment, the Civil Court properly granted Nationwide’s motion for summary judgment under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 ), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the judgment in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 ; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133, 2014 NY Slip Op 50052 ; EBM Med. Health Care, P.C., 38 Misc 3d at 2)”

We have seem this before.  And we will see it again.

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