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Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: April 3, 2021

Court Dismisses Affirmative Defense That Merely Seeks to Preserve the Right Later to Assert Additional Defenses

On March 19, 2021, Justice Masley of the New York County Commercial Division issued a decision in CF 125 Holdings LLC v. VS 125 LLC, 2021 NY Slip Op. 30924(U), dismissing an affirmative defense that sought to preserve the right later to assert additional defenses, explaining:

The ninth affirmative defense, which asserts the right to state additional affirmative defenses, as they may appear during this litigation, is dismissed as an ineffective catchall provision. A party cannot employ a catch-all provision in an attempt to preserve any and all potential defenses/objections for future use without affording notice to the opposing party. This defense is dismissed.

(Internal citations omitted).

New York procedural law is mostly straightforward. One requirement that may not be obvious to non-lawyers is the requirement to assert certain affirmative defenses in an answer to a complaint or risk waiving them. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have a question regarding the proper way to respond to a lawsuit.

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