Affirmative Defense Not in Answer Not Waived Because it Was Subsequently Raised and Responded to

On December 15, 2016, the First Department issued a decision in American Stevedoring, Inc. v. Red Hook Container Terminal, LLC, 2016 NY Slip Op. 08470, holding that an affirmative defense was not waived despite not having been raised in an answer, explaining:

Contrary to the motion court's conclusion, defendant did not waive the illegality defense by not raising it in its pleadings. On prior motions defendant had raised the argument that it should not be forced to commit trespass, and plaintiff had responded to the argument. Because plaintiff therefore was not surprised or prejudiced by its assertion, the defense may be entertained.

(Internal quotations and citations omitted) (emphasis added).