affirmative defense in New York

2023Although the affirmative defense of EED is available with respect to the count of murder in the second degree ( see Penal Law § 125.25 [1] [a] [i]), that defense would have required that defendant establish that he "suffered from a mental infirmity not rising to the level of insanity at the time of the homicide, typically manifested by a loss of self-control" ( People v Roche , 98 NY2d 70, 75 [2002]; see People v Schumaker , 136 AD3d 1369, 1372 [4th Dept 2016], lv denied 27 NY3d 1075 [2016], reconsideration denied 28 NY3d 974 [2016]).

2021Relying on his extreme emotional disturbance defense, defendant argues that the verdict was against the weight of the evidence. [FN1] To prove the affirmative defense of extreme emotional disturbance, defendant was required to demonstrate by a preponderance of the evidence, "first, that he . . . acted under the influence of an extreme emotional disturbance and, second, that there was a reasonable explanation or excuse for that disturbance" ( People v Roche , 98 NY2d 70, 76 [2002]; see Penal Law § 125.25 [1] [a]; People v Diaz , 15 NY3d 40, 45 [2010]).

2016Moreover, the jury’s rejection of the defendant’s affirmative defense that he was “act[ing] under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse” when he stabbed and killed his estranged wife was not against the weight of the evidence (Penal Law § 125.25 [1] [a]; see People v Roche, 98 NY2d 70, 75 [2002]; People v Casassa, 49 NY2d 668 [1980]; People v Palacios, 302 AD2d 540, 541 [2003]).

2015If the affirmative defense of extreme emotional disturbance is established by showing that the homicidal act was “an understandable human response deserving of mercy” (People v Casassa, 49 NY2d 668, 680-681 [1980], cert denied 449 US 842 [1980]), the conviction will be reduced to manslaughter in the first degree (see Penal Law § 125.25 [1] [a]; People v Harris, 95 NY2d 316, 318-319 [2000]; People v Benson, 119 AD3d 1145 , 1146-1147 [2014], lv denied 24 NY3d 1118 [2015]).

2024Co. v. Farrell, 57 AD3d 721, 723 (2 nd Dept. 2008). 16 [* 16] In light of the Court's determination that Plaintiffs are entitled to summary judgment on the claim for conversion and "money had and received", it necessarily follows that the affirmative defense of failure to state a cause of action must be dismissed.

2012Co. v Farrell, 57 AD3d at 723 ), and the plaintiff did not show that this affirmative defense is without merit as a matter of law.

2026"Thus, when moving to dismiss or strike an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is 'without merit as a matter of law'" (<i>Greco v Christoffersen</i>, 70 AD3d 769, 711 , quoting <i>Vita v New York Waste Servs., LLC</i>, 34 AD3d 559, 559 ; <i>see</i> <i>Muniz v SPO Rest., LLC</i>, 227 AD3d at 1004).

2026Moreover, the Supreme Court should have granted that branch of the plaintiff's motion which was pursuant to CPLR 3211(b) to dismiss the defendants' affirmative defenses. "'CPLR 3211(b) authorizes a plaintiff to move, at any time, to dismiss a defendant's affirmative defense on the ground that it has no merit'" ( Muniz v SPO Rest., LLC , 227 AD3d 1002, 1004 [internal quotation marks omitted], quoting Greco v Christoffersen , 70 AD3d 769, 771). "'[W]here affirmative defenses merely plead conclusions of law without any supporting facts, the affirmative defenses should be dismissed pursuant to CPL

2019We reject defendant's contention that the verdict is against the weight of the evidence based on the affirmative defense of extreme emotional disturbance ( see Penal Law § 125.25 [1] [a]; see generally People v Moye , 66 NY2d 887, 889-890 [1985]) inasmuch as defendant failed to establish that affirmative defense by a preponderance of the evidence ( see People v Smith , 1 NY3d 610 , 612 [2004]; People v Wylie , 303 AD2d 993, 994 [4th Dept 2003], lv denied 100 NY2d 567 [2003]; see generally People v White , 79 NY2d 900, 902-903 [1992]).

2010In an apparent response to this motion, defendant, on February 7, 2007—almost four months after his arraignment on the indictment—filed a one-page document entitled “CPL 250.10 Supplemental Notice,” which stated that he would “present lay witness evidence only concerning the affirmative defense of extreme emotional disturbance.” Again, defendant did not provide any details regarding the content of this proposed testimony nor did he identify the existence of any mental infirmity or what role such infirmity played in his decision to deliberately shoot and kill Lynch and Lynch’s wife (see People

2025Discussion The Appellate Division, First Department has held that “bare legal conclusions are insufficient to raise an affirmative defense” (Robbins v Growney, 229 AD2d 356, 358 [1st Dept 1996] [dismissing affirmative defenses]).

2025Discussion The Appellate Division, First Department has held that “bare legal conclusions are insufficient to raise an affirmative defense” (Robbins v Growney, 229 AD2d 356, 358 [1st Dept 1996] [dismissing affirmative defenses]).

2013Under the statutory scheme, a defendant who proves the elements of the affirmative defense of extreme emotional disturbance by a preponderance of the evidence establishes a mitigating circumstance reducing murder to manslaughter in the first degree (see Penal Law §§ 25.00 [2]; 125.20 [2]; 125.25 [1] [a]; People v Diaz, 15 NY3d 40, 44-45 [2010]; People v Patterson, 39 NY2d 288, 303 [1976]).

2013Under the statutory scheme, a defendant who proves the elements of the affirmative defense of extreme emotional disturbance by a preponderance of the evidence establishes a mitigating circumstance reducing murder to manslaughter in the first degree (see Penal Law §§ 25.00 [2]; 125.20 [2]; 125.25 [1] [a]; People v Diaz, 15 NY3d 40, 44-45 [2010]; People v Patterson, 39 NY2d 288, 303 [1976]).

2019We reject defendant's contention that the verdict is against the weight of the evidence based on the affirmative defense of extreme emotional disturbance ( see Penal Law § 125.25 [1] [a]; see generally People v Moye , 66 NY2d 887, 889-890 [1985]) inasmuch as defendant failed to establish that affirmative defense by a preponderance of the evidence ( see People v Smith , 1 NY3d 610 , 612 [2004]; People v Wylie , 303 AD2d 993, 994 [4th Dept 2003], lv denied 100 NY2d 567 [2003]; see generally People v White , 79 NY2d 900, 902-903 [1992]).

2015The record does not support an affirmative defense of extreme emotional disturbance, as it is devoid of evidence that the defendant was “actually influenced by an extreme emotional disturbance” when he shot the victim (People v Harris, 95 NY2d 316, 319 [2000]; People v Roche, 98 NY2d 70, 76 [2002]; see People v Casassa, 49 NY2d 668, 678-679 [1980]; cf. People v McKenzie, 19 NY3d 463 [2012]; People v Moye, 66 NY2d 887 [1985]; People v Sepe, 111 AD3d 75 [2013]).

2015Here, we conclude that plaintiff established its entitlement to judgment as a matter of law based on defendants’ breach of the lease and guaranty, and defendants failed to raise an issue of fact with respect to the affirmative defense of surrender and acceptance (see Trahwen, LLC v Ming 99 Cent City #7, Inc., 106 AD3d 1467, 1467 [2013], lv dismissed 21 NY3d 1066 [2013]; Barr v Country Motor Car Group, 221 AD2d 1003 , 1003-1004 [1995], lv dismissed 88 NY2d 919 [1996]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

2015Here, we conclude that plaintiff established its entitlement to judgment as a matter of law based on defendants’ breach of the lease and guaranty, and defendants failed to raise an issue of fact with respect to the affirmative defense of surrender and acceptance (see Trahwen, LLC v Ming 99 Cent City #7, Inc., 106 AD3d 1467, 1467 [2013], lv dismissed 21 NY3d 1066 [2013]; Barr v Country Motor Car Group, 221 AD2d 1003 , 1003-1004 [1995], lv dismissed 88 NY2d 919 [1996]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

2026Ass’n v Mastropaolo, 42 AD3d 239, 241-43 (2d Dept 2007) (finding waiver of standing as an affirmative defense when defendant “did not raise the standing issue in his answer or in a pre- answer motion to dismiss the complaint”); Deutsche Bank Natl.

2022When the affirmative defense of standing is never raised by a defendant in a mortgage foreclosure action, the defense is deemed waived ( see US Bank N.A. v Nelson , 36 NY3d 998 , 999; GMAC Mtge., LLC v Coombs , 191 AD3d 37, 46-47 ; Wells Fargo Bank Minn., N.A. v Mastropaolo , 42 AD3d 239, 244 ).

2015If the affirmative defense of extreme emotional disturbance is established by showing that the homicidal act was “an understandable human response deserving of mercy” (People v Casassa, 49 NY2d 668, 680-681 [1980], cert denied 449 US 842 [1980]), the conviction will be reduced to manslaughter in the first degree (see Penal Law § 125.25 [1] [a]; People v Harris, 95 NY2d 316, 318-319 [2000]; People v Benson, 119 AD3d 1145 , 1146-1147 [2014], lv denied 24 NY3d 1118 [2015]).

2015Under our law, EED is an affirmative defense that reduces defendant’s criminal culpability from murder to first-degree manslaughter (Harris, 95 NY2d at 318-319 ; Penal Law §§ 125.25, 125.20 [2]).

2019We reject defendant's contention that the verdict is against the weight of the evidence based on the affirmative defense of extreme emotional disturbance ( see Penal Law § 125.25 [1] [a]; see generally People v Moye , 66 NY2d 887, 889-890 [1985]) inasmuch as defendant failed to establish that affirmative defense by a preponderance of the evidence ( see People v Smith , 1 NY3d 610 , 612 [2004]; People v Wylie , 303 AD2d 993, 994 [4th Dept 2003], lv denied 100 NY2d 567 [2003]; see generally People v White , 79 NY2d 900, 902-903 [1992]).

2014A defendant is entitled to a jury charge on EED where the evidence, viewed in the light most favorable to the defendant, is sufficient for the jury “to find by a preponderance of the evidence that the elements of the affirmative defense are satisfied” (People v Moye, 66 NY2d 887, 889 [1985]; accord People v Harris, 95 NY2d 316, 320 [2000]; People v White, 79 NY2d 900, 903 [1992]).

2026The burden is on the defendant to prove legal justification as an affirmative defense ( see Broughton , 37 NY2d at 458 ).

2025By the same token, "evidence of a subsequent dismissal, acquittal or reversal on appeal would also be admissible to refute the affirmative defense of justification" ( id. ).

2026"Thus, when moving to dismiss or strike an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is 'without merit as a matter of law'" (<i>Greco v Christoffersen</i>, 70 AD3d 769, 711 , quoting <i>Vita v New York Waste Servs., LLC</i>, 34 AD3d 559, 559 ; <i>see</i> <i>Muniz v SPO Rest., LLC</i>, 227 AD3d at 1004).

2026Pursuant to CPLR 3211(b), "[a] party may move for judgment dismissing one or more [*2] defenses, on the ground that a defense is not stated or has no merit." "When moving to dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is 'without merit as a matter of law'" ( Bank of N.Y. v Penalver , 125 AD3d 796, 797 , quoting Vita v New York Waste Servs., LLC , 34 AD3d 559, 559 ; see Diversified Bldg.

2021Moreover, to the extent the defendant contends that the verdict is against the weight of the evidence because he proved the affirmative defense of duress by a preponderance of the evidence, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v Danielson , 9 NY3d 342 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v Mateo , 2 NY3d 383, 410 ; People v Bleakley , 69 NY2d 490, 495 ).

2018If we answer that question in the affirmative, then we must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence, and evaluate the strength of such conclusions in order to decide whether the defendant met his burden of proving the affirmative defense of mental disease or defect by the preponderance of evidence ( see People v Danielson, 9 NY3d at 348 ; People v Joyner, 126 AD3d at 1005 ; People v Curry, 112 AD3d 843, 844 ; see also Penal Law §§ 25.00[2]; 40.15; People v Kohl, 72 NY2d 191 ).

2018Accordingly, as there was no reasonable view of the evidence under which a jury could have found that the statutory requirements were satisfied, County Court properly denied defendant's request to charge the affirmative defense of entrapment ( see People v Brown , 82 NY2d at 871-872 ; People v Butts , 72 NY2d at 750-751 ; People v Minckler , 265 AD2d at 799 ).

2018Viewing the trial evidence in the light most favorable to the defendant ( see People v Butts , 72 NY2d 746, 750 ), there is no reasonable view of the evidence that would permit the jury to find that each and every one of the elements of the affirmative defense was established by a preponderance of the evidence ( see Penal Law § 25.00[2]; People v Bornholdt , 33 NY2d 75 ).

2026As stated by the Appellate Division, Second Department in US Bank Nat'l Ass'n v Nelson, 169 AD3d 110 (2d Dept 2019) [internal quotation marks and citations omitted], aff'd , 36 NY3d 998 (2020), "a mere denial of one or more elements of the cause of action will suffice to place them [*5]in issue, and there is no reason to [additionally] assert as an affirmative defense the opposite of what the pleading party is [already] required to prove (brackets in original)." ( Nelson, 169 AD3d at 113.) Petitioner bears the burden of authenticating the required predicate notice at trial where, as here, resp

2026As stated by the Appellate Division, Second Department in US Bank Nat'l Ass'n v Nelson, 169 AD3d 110 (2d Dept 2019) [internal quotation marks and citations omitted], aff'd , 36 NY3d 998 (2020), "a mere denial of one or more elements of the cause of action will suffice to place them [*5]in issue, and there is no reason to [additionally] assert as an affirmative defense the opposite of what the pleading party is [already] required to prove (brackets in original)." ( Nelson, 169 AD3d at 113.) Petitioner bears the burden of authenticating the required predicate notice at trial where, as here, resp

2020Defendant was not entitled to such a charge here because the evidence, viewed in the light most favorable to defendant, was not sufficient for the jury to find by a preponderance of the evidence that the elements of the affirmative defense of EED were satisfied ( see generally id. ; People v Walker , 64 NY2d 741, 743 [1984], rearg dismissed 65 NY2d 924 [1985]; People v Coello , 129 AD3d 442, 442-443 [1st Dept 2015], lv denied 26 NY3d 927 [2015]).

2012To be entitled to an EED defense jury charge, defendant had to submit “evidence sufficient for a jury to find, by a preponderance of the evidence, that the elements of this affirmative defense were established” (People v Walker, 64 NY2d 741, 743 [1984]).

2026As the court noted to the parties during the pre-trial conference, and at outset of the trial, to the extent Respondent Torres avers that Mr. Klein has always co-resided with her under her care, Respondent Klein has set forth a colorable succession defense independent of his mother's, and the pleadings are hereby amended, sua sponte, to conform to the proof to raise such an affirmative defense, even in the absence of a written answer ( see 2070 LLC v Cuesta , 87 Misc 3d 133 [App Term, 1st Dept 2025]; Thanasoulis v Shapiro , 81 Misc 3d 132 [App Term, 1st Dept 2023; Wooten v State , 302 AD2d 70

1984Such neglect, coupled with the fact that plaintiff has been prejudiced by the expenditure of time and effort in preparing a case in response to a pleading from which significant material was needlessly omitted, constitutes sufficient reason for Special Term’s denial of defendant’s motion (see Siegel, NY Prac, § 237, p 289; Shanahan v Shanahan, 92 AD2d 566 ; cf. James-Smith v Rottenberg, 32 AD2d 792 ; Foster Co. v Terry Contr., 25 AD2d 721 ; but cf. Murray v City of New York, 43 NY2d 400 , mot for rearg dsmd 45 NY2d 966 ; Wyso v City of New York, 91 AD2d 661 , which permitted the assertion of a

2015In addition, a reviewing court must “avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis” (People v Baldi, 54 NY2d 137, 146 [1981]; see Benevento, 91 NY2d at 712 ; People v Kurkowski, 117 AD3d 1442 , 1443 [2014], lv denied 16 NY3d 896 [2011]; see also People v McGee, 20 NY3d 513, 521 [2013]; People v Satterfield, 66 NY2d 796, 798 [1985]).

1995We agree with the Appellate Division that defense counsel’s failure to request the affirmative defense instruction does not constitute ineffective assistance of counsel, in and of itself, under the entire circumstances of this case (see, People v Hobot, 84 NY2d 1021 ; People v Flores, 84 NY2d 184, 187-188 ; People v Baldi, 54 NY2d 137, 147 ).

2026"However, while 'a plaintiff is not required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the [*2]plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence and culpable conduct on the part of the plaintiff'" ( Maurice v Donovan , 235 AD3d 633 , 634, quoting Sapienza v Harrison , 191 AD3d 1028, 1029 ). "'[A] violation of a standard of care imposed by

2026When a plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence, the plaintiff must establish, prima facie, that he or she was not at fault in causing the accident ( see Seizeme v Levy , 208 AD3d 809, 810 ; Sapienza v Harrison , 191 AD3d 1028, 1029 ).

2025A plaintiff is no longer required to show freedom from comparative fault in establishing his or her [*2]prima facie case against a defendant on the issue of that defendant's liability ( see Rodriguez v City of New York , 31 NY3d at 324-325 ). "[However], the issue of a plaintiff's comparative negligence may be decided in the context of a plaintiff's motion for summary judgment on the issue of liability where, as here, the plaintiff also seeks dismissal of the defendant's affirmative defense alleging comparative negligence" ( Ramirez v Wangdu , 195 AD3d 646 , 646).

2025Although an issue of fact as to plaintiff’s comparative fault is not a basis to deny summary judgment in plaintiff’s favor as to liability (Rodriguez v City of New York, 31 NY3d 312, 315 [2018]), the branches of plaintiff’s motion seeking to find defendants 100% liable and to strike the affirmative defense of plaintiff’s culpable conduct are denied.

2026"While the People are required to prove the elements of the charged crimes beyond a reasonable doubt, the defendant has the burden of proving the elements of the affirmative defense by a preponderance of the evidence" ( Hills , 243 AD3d at 1241; see § 25.00 [2]; People v Kohl , 72 NY2d 191, 193-194 [1988]).

2023Moreover, the presumption of sanity has been superseded by the statute making insanity an affirmative defense ( People v Kohl , 72 NY2d 191, 195 [1988]).

2025The court must charge the affirmative defense to robbery in the first degree when, viewing the evidence in the light most favorable to the defendant, there is "sufficient evidence for the jury to find by a preponderance of the evidence that the elements of the defense are satisfied, i.e., that the object displayed was not a loaded weapon [readily] capable of producing death or other serious physical injury" ( People v Gilliard , 72 NY2d 877, 878 [1988]; see Penal Law § 160.15 [4]).

2025The court must charge the affirmative defense to robbery in the first degree when, viewing the evidence in the light most favorable to the defendant, there is "sufficient evidence for the jury to find by a preponderance of the evidence that the elements of the defense are satisfied, i.e., that the object displayed was not a loaded weapon [readily] capable of producing death or other serious physical injury" ( People v Gilliard , 72 NY2d 877, 878 [1988]; see Penal Law § 160.15 [4]).