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Affirmative Defense or Admission? Plead With Caution (NY)

September 4, 2013

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When preparing an answer, we are ever-concerned with overlooking potential affirmative defenses, as failing to assert that defense may result in waiver. However, it is equally important to consider the ramifications of asserting potential defenses and to craft the affirmative defenses appropriately.
In <a href=""><i>Hollinden v. City of New York</i></a>, the City of New York almost learned this lesson the hard way. There, the plaintiff alleged that she was assaulted by Dennis, a New York City police officer. The City, in its answer, denied “knowledge or information sufficient to form a belief with respect to the truth of the allegations” set forth in the paragraphs alleging that Dennis was a police officer and that he was acting within the scope of his employment. Yet, as an affirmative defense, the City asserted that “such acts as were committed by law enforcement in the employ of the City of New York in the scope of their employment were justified.”
Plaintiff moved for summary judgment on the basis that Dennis was convicted of assault and that the City’s affirmative defense constituted an admission. The Supreme Court granted the motion, but the Second Department reversed. The appellate court found that the language in the affirmative defense was expressed in conditional language that could not be construed as an admission.  The court noted that, in fact, the City denied knowledge sufficient to form a belief as to whether Dennis was acting within the scope of his employment.  Moreover, while the plaintiff sought to utilize language that was favorable to him, he refused to be bound by allegations in the answer that were not favorable.
Special thanks to Gabe Darwick for his contribution.
For more information, contact Denise Fontana Ricci at <a href=""></a>.


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