Commercial Division Blog

Posted: July 28, 2018 / Categories Commercial, Court Rules/Procedures

Defense Waived Because Not Asserted in Answer

On July 16, 2018, Justice Schecter of the New York County Commercial Division issued a decision in Bioenergy Life Science, Inc. v. RiboCor, Inc., 2018 NY Slip Op. 31672(U), holding that a defense was waived because it was not asserted in the Defendant's Answer, explaining:

Next, RiboCor contends that Bioenergy waived its breaches. RiboCor did not plead this defense in its answer, which was filed more than three years ago. The only remotely similar affirmative defense pleaded in the answer is unclean hands, an equitable defense inapposite to a legal claim for breach of contract. Regardless, even if this defense were recast as "waiver" it would still be unavailing, as it has nothing to do with Bioenergy's supposed wavier of RiboCor's breaches. Instead of moving for leave to amend, RiboCor suggests that the court should reinterpret its unclean hands defense as the waiver defense articulated in its opposition brief. The court will not do so. RiboCor did not provide fair notice to Bioenergy that this defense was going to be part of the case; thus, Bioenergy was deprived of the opportunity to seek discovery on and strategize a response to such defense. Nor could Bioenergy have moved for judgement on the defense that it could not have anticipated. RiboCor does not proffer any good cause for its delay in asserting the defense or explain why material prejudice to Bioenergy should be overlooked.

(Internal citations omitted).

In New York, the courts usually are very generous in allowing a party to amend its pleadings. However, there are limits to this generosity, and that applies particularly to attempts to add affirmative defenses after the initial answer. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have a question regarding whether it is too late to amend your claims and defenses.