CPLR R. 3025(d); R. 3211(e): Affirmative Defense Pleaded in Amended Answer, Not in Initial Answer

CPLR R. 3025 Amended and supplemental pleadings
(d) Responses to amended or supplemental pleadings

CPLR R. 3211 Motion to dismiss
(e) Number, time and waiver of objections; motion to plead over

Mendrzycki v Cricchio, 2008 NY Slip Op 09044 (App. Div, 2nd)

On this appeal, we are presented with the principal question of whether
a defendant may assert a statute of limitations defense for the first
time in an answer served pursuant to CPLR 3025(d) and responsive to an
amended complaint served pursuant to CPLR 3025(b), or whether such a
defense is waived by not having been pleaded in the original answer to
the initial complaint. We hold that such a defense is not waived as the
answer presently under dispute, which was required by CPLR 3025(d),
constitutes an original answer to the amended complaint
.

CPLR 3211(e) provides in pertinent part, "[a]ny objection or defense
based upon a ground set forth in paragraphs one, three, four, five and
six of subdivision (a) is waived unless raised either by [a pre-answer
motion to dismiss] or in the responsive pleading." Here, because the
doctors' statute of limitations defense (see CPLR 3211[a][5])
was raised in responsive pleadings submitted pursuant to CPLR 3025(d),
we conclude that the defense was not waived. That statute provides, in
pertinent part, that "there shall be an answer or reply to an amended
or supplemental pleading if an answer or reply is required to the
pleading being amended or supplemented" (CPLR 3025[d]; see [*3]Westinghouse Elec. Supply Co. v Pyramid Champlain Co., 193 AD2d 928, 930; Madison-Murray Assocs. v Perlbinder,
188 AD2d 362; Siegel, Practice Commentaries, McKinney's Cons Laws of
NY, Book 7B, CPLR C3025:21). Although CPLR 3025(d) is silent as to
whether new affirmative defenses may be raised in an answer served
under this subdivision, significantly, an amended complaint is deemed
to supersede an original complaint, and thus, a defendant's original
answer has no effect
(see Chalasani v Neuman, 64 NY2d 879; Elegante Leasing, Ltd. v Cross Trans Svc, Inc., 11 AD3d 650; O'Ferral v City of New York, 8 AD3d 457, 459; John W. Cowper Co. v Buffalo Hotel Dev. Venture, 99 AD2d 19, 23-24; Stella v Stella,
92 AD2d 589). As such, an answer to an amended complaint served
pursuant to CPLR 3025(d) is in fact an original answer to the amended
complaint, and thus, affirmative defenses raised in that answer are not
limited to those asserted in the original answer.

We recognize that plaintiffs may claim undue prejudice and
surprise from the application of this rule. However, the primary focus
is "the effect of the amended complaint served by plaintiff [ ],"
rather than "the effect of the subsequent answer" (Boulay v Olympic Flame,
165 AD2d 191, 193). 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
contrast, a supplemental complaint, which is not at issue here,[FN1] does not supersede the original complaint, but is "in addition to it"
(Pimsler v Angert, 1 AD2d 783, 783; see Lovisa Constr. Co. v Facilities Dev. Corp., 148 AD2d 913, 915; Stella v Stella, 92 AD2d 589). In such circumstances, the original answer remains in effect (see Stella v Stella,
92 AD2d at 589), such that a defendant could not assert a new
affirmative defense in its answer to the supplemental complaint unless
it is responsive to the new matter alleged (see Garden State Brickface Co. v Stecker,
130 AD2d 707, 709). Accordingly, we hold that a defendant may raise a
statute of limitations affirmative defense for the first time in an
answer to an amended complaint served pursuant to CPLR 3025(d) (see Boulay v Olympic Flame, 165 AD2d 191; Stella v Stella, 92 AD2d 589; see also Iacovangelo v Shepherd, 5 NY3d 184, 186 n; cf. Addesso v Shemtob, 70 NY2d 689).

Here, upon being served with an amended complaint, the doctors
were required by CPLR 3025(d) to respond, and because the amended
complaint superseded the initial complaint, despite the doctors'
failure to raise a statute of limitations affirmative defense in their
original answers to that complaint, the doctors did not waive their
rights to assert that defense in their answers to the amended
complaint. We note that, although the doctors' time to amend their
original answers as of right pursuant to CPLR 3025(a) had expired, and
they did not move for leave to amend those answers pursuant to CPLR
3025(b), they were not required to obtain leave to amend their answers,
since the answers to the amended complaint were submitted pursuant to
CPLR 3025(d)
.

Thus, the Supreme Court erred in granting that branch of the
plaintiff's cross motion which was to strike the doctors' respective
affirmative defenses based on the statute of limitations as first
raised in their answers to the amended complaints served pursuant to
CPLR 3025(d).

1.  A plaintiff cannot avoid the application of this rule by simply
denominating as a "supplemental" pleading one that asserts new injuries
and a new category of damages, and which is therefore properly an
amended pleading
(see Fuentes v City of New York, 3 AD3d 549, 550; Pearce v Booth Mem. Hosp., 152 AD2d 553, 554)

The bold is mine.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: