Part VIII The Answer The Answer

• Jurisdiction: New York

Part VIII — The Answer

The Legal Writer continues with drafting the answer. This column focuses on the essential aspects of affirmative defenses.

Affirmative Defenses

A party must plead all affirmative defenses. CPLR 3018(b) defines affirmative defenses as “all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading.”

Affirmative defenses are defenses that a defendant has the burden to raise in the defendant’s answer and prove at trial.²⁴³ Affirmative defenses attack a plaintiff’s legal right to bring a cause of action.²⁴⁴

Here’s a list of some common affirmative defenses:

1. statute of limitations;

2. laches;

3. personal jurisdiction;

4. subject-matter jurisdiction;

5. standing;

6. other pending action;

7. res judicata;

8. collateral estoppel;

9. arbitration and award;

10. release;

11. the defendant’s infancy or disability;

12. preemption by federal law;

13. failure to mitigate damages;

14. collateral source of recovery;

15. the defendant’s acting as agent;

16. ultra vires act;

17. estoppel;

18. statute of frauds;

19. unconscionable contract term;

20. mistake;

21. duress;

22. illegality;

23. payment;

24. accord and satisfaction;

25. discharge in bankruptcy;

26. insurance policy exclusions;

27. usurious interest rate;

28. plaintiff’s culpable conduct;

29. release of joint-tortfeasors;

30. pre-injury liability disclaimer;

31. workers’ compensation exclusive remedy;

32. truth of defamatory statement;

33. absolute defamation privilege;

34. qualified defamation privilege;

35. adverse possession;

36. assumption of risk; and

37. waiver.²⁴⁵

Some of these common affirmative defenses are discussed below.

Statute of Limitations

As the defendant, you must affirmatively plead in your answer or in your pre-answer motion (a motion to dismiss the case before you file your answer) that the plaintiff failed to commence the lawsuit within the applicable statute of limitations. You waive this defense if you don’t assert it.²⁴⁶ A court may not take judicial notice on its own that a statute of limitation applies.²⁴⁷ You may cure omitting this defense in your answer and avoid waiving it by raising it in an amended answer. You needn’t specify the applicable statute or its limitation period in your answer.²⁴⁸ Example: “The applicable statute of limitations bars plaintiff’s claims in whole or in part.”

Laches

Laches applies to actions of equity, not actions at law. To establish laches, a defendant must show (1) the defendant’s conduct giving rise to the situation complained of; (2) the plaintiff’s delay in asserting a claim for relief despite the opportunity to do so; (3) the defendant’s lack of knowledge or notice that plaintiff would assert its claim for relief; and (4) in the event that relief is accorded the plaintiff, the defendant will be injured or prejudiced.²⁴⁹ Example: “The legal principle of laches bars plaintiff’s claims.” Or: “To the extent plaintiff seeks equitable relief, the legal principle of laches bars plaintiff’s claims.”

Personal Jurisdiction

The court’s personal jurisdiction over a defendant is an affirmative defense that is waived unless the defendant pleads it in the answer or raises it in a pre-answer motion.²⁵⁰ If you’ve omitted the personal-jurisdiction defense from your answer and you want to assert it, you won’t waive the defense if you amend your answer quickly.²⁵¹ If you wait until a court grants you leave to amend the answer, a court may deny your request if the amendment will prejudice the plaintiff.²⁵² As the defendant, you may raise personal jurisdiction as an affirmative defense, but the plaintiff must prove personal jurisdiction.²⁵³ Example: “Plaintiff did not properly serve defendant. This Court has no personal jurisdiction over defendant.”

Subject-Matter Jurisdiction

Assert subject-matter jurisdiction as an affirmative defense when the court cannot hear and determine the subject matter of the dispute. This defense may be raised at any point in the case: The defense is never waived. The parties may not agree to confer subject matter jurisdiction on a court.²⁵⁴ A court may bring up and determine sua sponte the issue of subject-matter jurisdiction.²⁵⁵ Example: “This Court lacks subject matter jurisdiction over this matter.”

Standing

You must plead as an affirmative defense a plaintiff’s lack of standing to assert a claim. You’ll waive the defense unless you raise it in your answer or in a pre-answer motion.²⁵⁶

Other Pending Action

You waive this defense if you don’t assert it in your answer or pre-answer motion.²⁵⁷ Use this defense when another action involving the same parties and the same claims is pending in another court.

Res Judicata

Under res judicata, also called claim preclusion, a party is precluded from relitigating a claim between the same parties.²⁵⁸ You waive the defense if you don’t raise it in your answer or in a pre-answer motion. If you raise the defense too late, a court may deny your request to amend your answer.²⁵⁹ Example: “The legal principle of res judicata bars plaintiff’s claims.”

Collateral Estoppel

Under collateral estoppel, also called issue preclusion, a party is precluded from raising the same issues litigated in an earlier action or proceeding if those issues were litigated and determined earlier. You waive this defense if you don’t raise it in your answer or in your pre-answer motion.²⁶⁰ Example: “Collateral estoppel bars plaintiff’s claims.”

Arbitration and Award

You may assert that the action or proceeding is barred by a prior arbitration and award. You waive the defense if you don’t assert it in your answer or pre-answer motion. Assert this defense only when a prior arbitration award exists, not when a contract contains an arbitration clause and you’re seeking to arbitrate the matter.

Release

A release will “discharge[e] an existing obligation or cause of action.”²⁶¹ For example, a release is given in exchange for settling a cause of action or pre-existing claim of right.²⁶² You waive the defense if you don’t assert it as an affirmative defense in your answer or in a pre-answer motion.

Defendant’s Infancy or Disability

When the defendant is under 18 years old or legally incompetent, raise that affirmative defense in your answer or pre-answer motion. Otherwise, you’ll waive it.

Failure to Mitigate Damages

Assert as an affirmative defense that the plaintiff failed to minimize the damages for which you, the defendant, are allegedly liable. Otherwise, you waive the defense.²⁶³ When you raise this defense, state precisely that you’re not admitting liability for the damages or that the damages exist, if that’s true. Example: “Plaintiff has failed to mitigate its alleged damages.”

Statute of Frauds

Under CPLR 3018(b), you’re required to plead this as an affirmative defense.²⁶⁴ Statute of frauds “requires that certain agreements, promises, and undertakings be in writing to be enforceable, [including an agreement that won’t be completed within] one year from the date of agreement; . . . a promise to answer for the debt of another; . . . [or] a promise to pay a debt after the debt was discharged in bankruptcy²⁶⁵.” Example: “The Statute of Frauds bars plaintiff’s claims.”

Mistake

If a contract shouldn’t be enforced because the contract, or one of its terms, was based on the parties’ mistake, affirmatively plead this in your answer. A mistake doesn’t have to be mutual.²⁶⁶

Illegality

If a contract is void because its purpose was illegal under state or common law, raise illegality as an affirmative defense.²⁶⁷

Discharge in Bankruptcy

If a debt was discharged in a bankruptcy proceeding, affirmatively plead that defense in your answer or pre-answer motion. The defense is otherwise waived.²⁶⁸

Failure to State Cause of Action

Many defense lawyers will allege, as an affirmative defense, that the complaint failed to state a cause of action. Example: “Plaintiff’s complaint fails to state a cause of action.” This isn’t a true affirmative defense. This defense belongs in a motion to dismiss under CPLR 3211(a)(7). All the Departments of the Appellate Division allow you to plead this defense as an affirmative defense; it won’t prejudice you to include it as an affirmative defense. The First and Third Departments have acknowledged, however, that the defense is surplusage; it needn’t be included in your answer.²⁶⁹ It’s up to you to decide whether to move to dismiss or to include as a defense in your answer that the plaintiff failed to state a cause of action. Even if you include the defense in your answer and the court strikes the defense, the merits of your defense won’t be resolved until you move to dismiss under CPLR 3211(a)(7) for...