Commercial Division Blog

Posted: September 1, 2020 / Categories Commercial, Court Rules/Procedures

Answer to Amended Complaint May Contain Affirmative Defenses That Could Have Been, But Were Not, Raised in Initial Answer

On August 26, 2020, the Second Department issued a decision in Seidler v. Knopf, 2020 NY Slip Op. 04799, holding that an answer to an amended complaint may contain affirmative defenses that could have been raised in an earlier answer, but were not, explaining:

When an amended complaint has been served, it supersedes the original complaint and becomes the only complaint in the case, and the defendants' original answer has no effect and a new responsive pleading must be substituted for the original answer. Since an amended complaint supplants the original complaint, it would unduly prejudice a defendant if it were bound by an original answer when the original complaint has no legal effect. In answering an amended complaint, defendants are not confined to answering the amended pleading, and the amended answer may contain new allegations in their defenses and counterclaims. The defendants may also assert affirmative defenses which were not raised, but could have been raised, in their answer to the prior complaint.

(Internal quotations and citations omitted).

In New York, the courts are very generous in allowing a party to amend its pleadings. However, there are limits to this generosity. 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 or answer.