Mayers v. D'Agostino, 444 N.E.2d 1323 (NY 1982). · Go Syfert
Search
Mayers v. D'Agostino, 444 N.E.2d 1323 (NY 1982). Cases Citing This Book View Copy Cite
G Cite
cited 2× by 2 distinct cases, last quoted 2000 · …shall be freely given upon such terms as may be just ⚠ not in text
53 citation events (19 in the last 25 years) across 5 distinct courts.
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 10 distinct citers. How cited ↗
cited Cited as authority (rule) Encarnacion v. Irby
S.D.N.Y. · 2024 · confidence medium
Mayers v. D’Agostino, 58 N.Y.2d 696, 698 (1982).
cited Cited as authority (rule) Country-Wide Insurance v. Gotham Medical, P.C.
N.Y. Sup. Ct. · 2015 · confidence medium
However, such defenses must be raised as affirmative defenses or by a motion under CPLR 3211 (a) (5), or the defenses are waived (see CPLR 3211 [e]; Mayers v D'Agostino, 58 NY2d 696, 698 [1982]).
discussed Cited as authority (rule) Vanderpool v. Loftness
Colo. Ct. App. · 2012 · confidence medium
Cf. Davignon, 322 F.3d at 15 (the district court abused its discretion in allowing the defendant to raise the defense of res judicata on the eighth day of a nine-day trial); Harvey, 878 F.2d at 1243-44 (the plaintiffs waived offensive issue preclusion by failing to raise it until after trial, though before judgment; the plaintiffs' trial conduct demonstrated a willingness to try the issue); Evans, 704 F.2d at 46-47 (the defendant waived the defense of res judicata by waiting until six days before trial to raise it); North Pacifica, 366 F.Supp.2d at 927-29 (the defendant waived issue preclusion…
discussed Cited as authority (rule) Paterno v. Carroll
N.Y. App. Div. · 2010 · confidence medium
Paterno’s defense that the counterclaim was barred by the doctrine of res judicata was waived because he failed to assert it in his answer or in a motion made before service of the answer was required (see CPLR 3211 [e]; Mayers v D’Agostino, 58 NY2d 696, 698 [1982]).
cited Cited as authority (rule) DeLaurentis v. Nager
N.Y. App. Div. · 2003 · confidence medium
However, the decision to grant or deny leave to amend is committed to the discretion of the Supreme Court (see Mayers v D'Agostino, 58 NY2d 696, 698 [1982]).
cited Cited "see" Country-Wide Insurance Co. v. Gotham Medical, P.C.
N.Y. App. Div. · 2017 · signal: see · confidence high
Defendant waived the defenses of res judicata and award and arbitration (CPLR 3211 [e]; see Mayers v D’Agostino, 58 NY2d 696 [1982]).
cited Cited "see" State v. International Fidelity Insurance
N.Y. App. Div. · 1989 · signal: see · confidence high
The defense of res judicata cannot be asserted in the absence of affirmative pleading (CPLR 3211 [e]; see, Mayers v D’Agostino, 58 NY2d 696, 698 ).
discussed Cited "see, e.g." Zhang Hua Lin v. Zhang Li Lin
N.Y. Sup. Ct. · 2016 · signal: see also · confidence low
Civil Practice Law and Rules § 3211 clearly states that the defenses of res judicata and collateral estoppel are deemed waived unless raised by a motion before service of the responsive pleading or by the responsive pleading (CPLR 3211 [e]; 3211 [a] [5]; see also Mayers v D’Agostino, 58 NY2d 696 [1982]).
discussed Cited "see, e.g." In re Hall
N.Y. App. Div. · 2000 · signal: see also · confidence low
By failing either to plead those defenses in a reply to the counterclaim, or to make a timely motion to dismiss the counterclaim on those grounds, petitioner has waived her right to assert those defenses (see, CPLR 3211 [e]; Ouyang v Jeng, 260 AD2d 618, 619-620 ; Pace v Perk, 81 AD2d 444, 461-462 ; see also, Mayers v D’Agostino, 58 NY2d 696, 698 ).
discussed Cited "see, e.g." Konrad v. 136 East 64th Street Corp.
N.Y. App. Div. · 1998 · signal: see also · confidence low
However, concern for the conservation of judicial resources warrants examination of the merit underlying a proposed cause of action (East Asiatic Co. v Corash, 34 AD2d 432, 434 ; see also, Mayers v D’Agostino, 58 NY2d 696, 698 ).
Retrieving the full opinion text from the archive…
William Mayers
v.
Nicholas D'Agostino
New York Court of Appeals.
Dec 2, 1982.
444 N.E.2d 1323
APPEARANCES OF COUNSEL, William F. Larkin and Benjamin Purvin for appellants., Morgan Kennedy and Morris J. Eisen for respondent.
Cited by 44 opinions  |  Published

opinion of the court

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

CPLR 3211 (subd [e]) provides, inter alia, that a defense based upon the doctrine of collateral estoppel is waived unless raised either in a responsive pleading or in a motion made before service of the responsive pleading is required.

Defendants raised the defense of collateral estoppel for the first time during the trial. Consequently, defendants waived this defense unless they could obtain leave to amend their answer to include the affirmative defense.

The decision to grant or deny leave to amend an answer is within the trial court’s discretion (Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 150, pp 595-596; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3025.14). Since one of the purposes upon which the doctrine of collateral estoppel is premised is to conserve the resources of the courts and litigants (Gilberg v Barbieri, 53 NY2d 285, 291) and since defendants failed to move to amend their answer until plaintiff had presented nearly all his evidence, we cannot say, as a matter of law, that the trial court, in denying the motion, abused its discretion.

In view of defendants’ waiver of the defense of collateral estoppel, we need not pass on the question of the propriety of raising that defense under the circumstances present here.

We have also considered the evidentiary issues raised by defendants and find no basis for reversal.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.