unpleaded defense in New York

2025However, "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 Freed v Best , 175 AD3d 1496 , 1497).

2024NO. 233 RECEIVED NYSCEF: 03/12/2024 *13-14 [Sup Ct, NY County 2019] [citations omitted]; see also Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2d Dept 2011] ["an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party"]; BMX Worldwide v Coppola N.Y.C., Inc., 287 AD2d 383, 384 [1st Dept 2001]). "[P]rejudice or surprise is ameliorated however, when it is shown that the plaintiff has had a full and fair opportunity to respond and oppose the defense being asserted in connection with summary judgment" (Antwi v HVT

2015We nevertheless conclude that “defendant’s failure to plead that defense in its answer with sufficient specificity does not preclude an award of summary judgment based on that defense” (Accadia, 115 AD3d at 1352). “[A] court may grant summary judgment based upon an unpleaded defense where . . . reliance upon that defense neither surprises nor prejudices the plaintiff” (id. [internal quotation marks omitted]; see Schaefer v Town of Victor, 77 AD3d 1346, 1347 [2010]; see generally Foley v D’Agostino, 21 AD2d 60, 65 [1964]).

2015We nevertheless conclude that “defendant’s failure to plead that defense in its answer with sufficient specificity does not preclude an award of summary judgment based on that defense” (Accadia, 115 AD3d at 1352). “[A] court may grant summary judgment based upon an unpleaded defense where . . . reliance upon that defense neither surprises nor prejudices the plaintiff” (id. [internal quotation marks omitted]; see Schaefer v Town of Victor, 77 AD3d 1346, 1347 [2010]; see generally Foley v D’Agostino, 21 AD2d 60, 65 [1964]).

2016Indeed, "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 [2011]; see also Lerwick v Kelsey , 24 AD3d 918 , 919 [2005]; Allen v Matthews , 266 AD2d 782 [1999]).

2016"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 [2011]; see also Lerwick v Kelsey , 24 AD3d 918 , 919 [2005]; Allen v Matthews , 266 AD2d 782 [1999])" ( Renelique , 50 Misc 3d 137[A] , 2016 NY Slip Op 50096[U] , *1).

2025Footnote 3: The majority cites to California Suites, Inc. v Russo Demolition Inc. ( 98 AD3d 144, 156 [1st Dept 2012] [where all parties treated defendant's motion to dismiss as one for summary judgment, the court properly granted summary judgment to defendant]) and Rogoff v San Juan Racing Assn. ( 54 NY2d 883, 885 [1981] [summary judgment properly granted based on an unpleaded defense where the issue was fully argued by both parties to the motion court]) for the proposition that parties are free to chart their own procedural course.

2025Footnote 3: The majority cites to California Suites, Inc. v Russo Demolition Inc. (98 AD3d 144, 156 [1st Dept 2012] [where all parties treated defendant's motion to dismiss as one for summary judgment, the court properly granted summary judgment to defendant]) and Rogoff v San Juan Racing Assn. (54 NY2d 883, 885 [1981] [summary judgment properly granted based on an unpleaded defense where the issue was fully argued by both parties to the motion court]) for the proposition that parties are free to chart their own procedural course.

2025Auth., 37 AD3d 157, 158 [1st Dept 2007]; Brodeur v Hayes, 305 AD2d 754, 755 [3d Dept 2003] [“Even an unpleaded defense may be raised on a summary judgment motion, as long as it would not be likely to surprise the adverse party or raise issues of fact not previously apparent”]).

2025Auth., 37 AD3d 157, 158 [1st Dept 2007]; Brodeur v Hayes, 305 AD2d 754, 755 [3d Dept 2003] [“Even an unpleaded defense may be raised on a summary judgment motion, as long as it would not be likely to surprise the adverse party or raise issues of fact not previously apparent”]).

2016Indeed, "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 [2011]; see also Lerwick v Kelsey , 24 AD3d 918 , 919 [2005]; Allen v Matthews , 266 AD2d 782 [1999]).

2016"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 [2011]; see also Lerwick v Kelsey , 24 AD3d 918 , 919 [2005]; Allen v Matthews , 266 AD2d 782 [1999])" ( Renelique , 50 Misc 3d 137[A] , 2016 NY Slip Op 50096[U] , *1).

2026That is, even an unpleaded defense may be invoked to defeat a summary judgment motion or serve as the basis for an affirmative grant of such relief in the absence of surprise and prejudice, provided that the opposing party has a full opportunity to respond" ( Sheils v County of Fulton, 14 AD3d 919, 921 [3d Dept 2005] [citations omitted], lv denied 4 NY3d 711 [2005]).

2019An unpleaded defense may be invoked to defeat a summary-judgment motion, or to serve as the basis for an affirmative grant of such relief, in the absence of surprise or prejudice, provided that the opposing party has a full opportunity to respond thereto ( Sheils v County of Fulton , 14 AD3d 919, 921 [and cases cited therein]; see also , Sullivan v Am.

2015We nevertheless conclude that “defendant’s failure to plead that defense in its answer with sufficient specificity does not preclude an award of summary judgment based on that defense” (Accadia, 115 AD3d at 1352). “[A] court may grant summary judgment based upon an unpleaded defense where . . . reliance upon that defense neither surprises nor prejudices the plaintiff” (id. [internal quotation marks omitted]; see Schaefer v Town of Victor, 77 AD3d 1346, 1347 [2010]; see generally Foley v D’Agostino, 21 AD2d 60, 65 [1964]).

2015We nevertheless conclude that “defendant’s failure to plead that defense in its answer with sufficient specificity does not preclude an award of summary judgment based on that defense” (Accadia, 115 AD3d at 1352). “[A] court may grant summary judgment based upon an unpleaded defense where . . . reliance upon that defense neither surprises nor prejudices the plaintiff” (id. [internal quotation marks omitted]; see Schaefer v Town of Victor, 77 AD3d 1346, 1347 [2010]; see generally Foley v D’Agostino, 21 AD2d 60, 65 [1964]).

2015We nevertheless conclude that “defendant’s failure to plead that defense in its answer with sufficient specificity does not preclude an award of summary judgment based on that defense” (Accadia, 115 AD3d at 1352). “[A] court may grant summary judgment based upon an unpleaded defense where . . . reliance upon that defense neither surprises nor prejudices the plaintiff” (id. [internal quotation marks omitted]; see Schaefer v Town of Victor, 77 AD3d 1346, 1347 [2010]; see generally Foley v D’Agostino, 21 AD2d 60, 65 [1964]).

2015We nevertheless conclude that “defendant’s failure to plead that defense in its answer with sufficient specificity does not preclude an award of summary judgment based on that defense” (Accadia, 115 AD3d at 1352). “[A] court may grant summary judgment based upon an unpleaded defense where . . . reliance upon that defense neither surprises nor prejudices the plaintiff” (id. [internal quotation marks omitted]; see Schaefer v Town of Victor, 77 AD3d 1346, 1347 [2010]; see generally Foley v D’Agostino, 21 AD2d 60, 65 [1964]).

2014Contrary to plaintiffs further contention, the court properly granted defendant’s motion on the ground that plaintiff failed to satisfy a condition precedent. “[A] condition precedent is ‘an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises’ ” (MHR Capital Partners LP v Presstek, Inc., 12 NY3d 640, 645 [2009], quoting Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 690 [1995]).

2014Contrary to plaintiffs further contention, the court properly granted defendant’s motion on the ground that plaintiff failed to satisfy a condition precedent. “[A] condition precedent is ‘an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises’ ” (MHR Capital Partners LP v Presstek, Inc., 12 NY3d 640, 645 [2009], quoting Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 690 [1995]).

2014Contrary to plaintiffs further contention, the court properly granted defendant’s motion on the ground that plaintiff failed to satisfy a condition precedent. “[A] condition precedent is ‘an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises’ ” (MHR Capital Partners LP v Presstek, Inc., 12 NY3d 640, 645 [2009], quoting Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 690 [1995]).

2014Contrary to plaintiffs further contention, the court properly granted defendant’s motion on the ground that plaintiff failed to satisfy a condition precedent. “[A] condition precedent is ‘an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises’ ” (MHR Capital Partners LP v Presstek, Inc., 12 NY3d 640, 645 [2009], quoting Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 690 [1995]).

2025Auth., 37 AD3d 157, 158 [1st Dept 2007]; Brodeur v Hayes, 305 AD2d 754, 755 [3d Dept 2003] [“Even an unpleaded defense may be raised on a summary judgment motion, as long as it would not be likely to surprise the adverse party or raise issues of fact not previously apparent”]).

2025Auth., 37 AD3d 157, 158 [1st Dept 2007]; Brodeur v Hayes, 305 AD2d 754, 755 [3d Dept 2003] [“Even an unpleaded defense may be raised on a summary judgment motion, as long as it would not be likely to surprise the adverse party or raise issues of fact not previously apparent”]).

2024Courts have held: "Defendants' failure to plead the affirmative defense of waiver in their answer did not preclude them from asserting such defense for the first time on summary judgment, since '[t]here is no prohibition against moving for summary judgment based on an unpleaded defense where the opposing party is not taken by surprise and does not suffer prejudice as a result'(A rteaga v City ofNew York, l 01 AD3d 454 , 454, 956 NYS2d 9 [l st Dept 2012]; see Brill & Meisel v Brown, 113 AD3d 435 435 , 979 NYS2d 283 [1st Dept 2014]" Matthew Adam Props., Inc. v United House of Prayer for All Peop

2015Defendants’ failure to plead the affirmative defense of waiver in their answer did not preclude them from asserting such defense for the first time on summary judgment, since “[t]here is no prohibition against moving for summary judgment based on an unpleaded defense where the opposing party is not taken by surprise and does not suffer prejudice as a result” (Arteaga v City of New York, 101 AD3d 454, 454 [1st Dept 2012]; see Brill & Meisel v Brown, 113 AD3d 435, 435 [1st Dept 2014]).

2010Contrary to plaintiffs contention, “a court may grant summary judgment based upon an unpleaded defense where[, as here,] reliance upon that defense neither surprises nor prejudices the plaintiff’ (Olean Urban Renewal Agency v Herman, 101 AD2d 712, 713 [1984]; see Herbert F. Darling, Inc. v City of Niagara Falls, 69 AD2d 989 , 990 [1979], affd 49 NY2d 855 [1980]).

1984H Although a defendant is generally required to plead an affirmative defense (CPLR 3018, subd [b]), and leave to amend a pleading should be freely given (CPLR 3025, subd [b]), a court may grant summary judgment based upon an unpleaded defense where reliance upon that defense neither surprises nor prejudices the plaintiff (see Herbert F. Darling, Inc. v City of Niagara Falls, 69 AD2d 989, 990 ; see, also, Esa v New York Prop.

2010Contrary to plaintiffs contention, “a court may grant summary judgment based upon an unpleaded defense where[, as here,] reliance upon that defense neither surprises nor prejudices the plaintiff’ (Olean Urban Renewal Agency v Herman, 101 AD2d 712, 713 [1984]; see Herbert F. Darling, Inc. v City of Niagara Falls, 69 AD2d 989 , 990 [1979], affd 49 NY2d 855 [1980]).

1998However, “a court may grant summary judgment based upon an unpleaded defense where reliance upon that defense neither surprises nor prejudices the plaintiff’ (Olean Urban Renewal Agency v Herman, 101 AD2d 712, 713 ; see also, ATN Marts v Ireland, 195 AD2d 959 ; Williams Corp. v Roma Fragrances & Cosmetics, 121 AD2d 278 ; Igbara Realty Corp. v New York Prop.

2011Although the defendants failed to plead as an affirmative defense that the plaintiffs relinquished their claims (see CPLR 3018 [b]), an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party (see Lerwick v Kelsey, 24 AD3d 918, 919 [2005]; Sheils v County of Fulton, 14 AD3d 919, 921 [2005]; Allen v Matthews, 266 AD2d 782 [1999]; Rogoff v San Juan Racing Assn., 77 AD2d 831, 832 [1980], affd 54 NY2d 883 [1981]).

1982Summary judgment may be defeated with an unpleaded defense and may be granted on an unpleaded cause of action or on an unpleaded defense (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:10, C3212:ll; Rizzi v Sussman, 9 AD2d 961 ; Dampskibsselskabet Torm A/S v Thomas Paper Co., 26 AD2d 347 ; Rogoff v San Juan Racing Assn., 77 AD2d 831 ).

2015Here, defendant’s reliance on the asserted defense could not have surprised or prejudiced plaintiff inasmuch as plaintiff “was already aware of the facts which constituted the defense” (Herbert F. Darling, Inc. v City of Niagara Falls, 69 AD2d 989 , 990 [1979], affd 49 NY2d 855 [1980]), i.e., the dispute resolution procedures contained in the contract executed by plaintiff (see generally Blanar v State Farm Ins.

2010Contrary to plaintiffs contention, “a court may grant summary judgment based upon an unpleaded defense where[, as here,] reliance upon that defense neither surprises nor prejudices the plaintiff’ (Olean Urban Renewal Agency v Herman, 101 AD2d 712, 713 [1984]; see Herbert F. Darling, Inc. v City of Niagara Falls, 69 AD2d 989 , 990 [1979], affd 49 NY2d 855 [1980]).

2010Co. v Nigro Bros., 222 AD2d 574 [1995]; Rogoff v San Juan Racing Assn., 77 AD2d 831 [1980], affd 54 NY2d 883 [1981]).

2004Co. v Nigro Bros., 222 AD2d 574 ; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3212:11, at 319).

2015Defendants’ failure to plead the affirmative defense of waiver in their answer did not preclude them from asserting such defense for the first time on summary judgment, since “[t]here is no prohibition against moving for summary judgment based on an unpleaded defense where the opposing party is not taken by surprise and does not suffer prejudice as a result” (Arteaga v City of New York, 101 AD3d 454, 454 [1st Dept 2012]; see Brill & Meisel v Brown, 113 AD3d 435, 435 [1st Dept 2014]).

2014In addition, the court properly considered defendants’ cross motion notwithstanding that it was based on an unpleaded defense of discharge for cause, as plaintiff does not argue that it was surprised or prejudiced by the defense (see Arteaga v City of New York, 101 AD3d 454 [1st Dept 2012]).

2004Use of an unpleaded defense in a summary judgment motion is not prohibited as long as the opposing party is not taken by surprise and does not suffer prejudice thereby ( see Rosario v City of New York, 261 AD2d 380, 380 ; Lynbrook Glass & Architectural Metals Corp. v Elite Assocs., 225 AD2d 525, 527 ; Seaboard Sur.

1999Use of an unpleaded defense in a summary judgment motion is not prohibited as long as the opposing party is not taken by surprise and does not suffer prejudice thereby (see, Lynbrook Glass & Architectural Metals Corp. v Elite Assocs., 225 AD2d 525, 527 ; Seaboard Sur.

2024NO. 233 RECEIVED NYSCEF: 03/12/2024 *13-14 [Sup Ct, NY County 2019] [citations omitted]; see also Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2d Dept 2011] ["an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party"]; BMX Worldwide v Coppola N.Y.C., Inc., 287 AD2d 383, 384 [1st Dept 2001]). "[P]rejudice or surprise is ameliorated however, when it is shown that the plaintiff has had a full and fair opportunity to respond and oppose the defense being asserted in connection with summary judgment" (Antwi v HVT

2010The threshold inquiry is whether in considering the unpleaded defense, the opponent of the defense is prejudiced thereby (see BMX Worldwide v Coppola N.Y.C., 287 AD2d 383 [2001]; Allen v Matthews, 266 AD2d 782, 784 [1999]; Seaboard Sur.

2021In opposition, even considering the unpleaded defense advanced by Scerbo in opposition to the plaintiffs' motion, Scerbo failed to raise a triable issue of fact ( see generally Alvarez v Prospect Hosp. , 68 NY2d 320 ; NYCTL 2008-A Trust v Lee Zhen Xiang , 121 AD3d at 1063 ).

2017In opposition, the defendant Tower Equities, Inc. (hereinafter Tower Equities), failed to raise a triable issue of fact rebutting the plaintiffs’ showing or as to the merit of its affirmative defenses (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; NYCTL 1998-2 Trustee v 2388 Nostrand Corp., 69 AD3d 594, 595 [2010]), even considering the unpleaded defense advanced in opposition to the motion (see NYCTL 2008-A Trust v Lee Zhen Xiang, 121 AD3d at 1063 ).