Does affirmative defense 22 NYCRR 130. 1 have to be challenged at answer stage through 3211 or at summary judgement?

Asked 7 months ago - New York, NY

Defense put 22 NYCRR 130.1 as very last affirmative defense. If I wait to address this defense if its included in a future defense initiated summary judgement motion instead of making a motion to strike or dismiss that affirmative defense now, will my case get squashed prior to defense moving for summary judgement? Does defense have to include 22NYCRR 130.1 in summ judgement motion to hold me liable or is the assertion of that defense in their answer enough to hold me liable if I don't CPLR 3211 or motion to strike it?

Attorney answers (4)

  1. Valentine Joseph Wallace

    Pro

    Contributor Level 9

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    Answered . The burden of proving affirmative defenses is on the defendant, but you don't say anything in your question about the nature of the case you're bringing. If they make any motion asking the court to dismiss the case because it's frivolous, you can oppose their motion then. I agree with my colleague in asking are you a lawyer. It would be unwise for a pro se to think the internet is an alternative to hiring a lawyer.

    The information provided is intended to convey general information and is not intended to be, and should not be... more
  2. Mitchell Aaron Nathanson

    Pro

    Contributor Level 15

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    Answered . It is correctable upon filing an affidavit. The statute governs attorney's review of documents. Are you a lawyer?
    #NathansonLaw #LegalQ&A.

    I do NOT know you. I am NOT your lawyer. This answer is provided for the general public who may have similar... more
  3. Eric Edward Rothstein

    Contributor Level 20

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    Answered . The defense is claiming that your case is frivolous. I would not move on this defense until discovery is complete.

    I am a former federal and State prosecutor and have been handling criminal defense and personal injury cases for... more
  4. Steven Warren Smollens

    Contributor Level 20

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    Lawyer agrees

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    Answered . Dear New York Plaintiff:

    The suggested method provided in the court rule is correction of the omission in the required signature when brought to the party's attention.

    Read the rule at:

    https://www.nycourts.gov/rules/jointappellate/1...

    If the defense relates to a claim relating to frivolous litigation, you may consider reading this article:

    http://www.newyorkpersonalinjuryattorneyblog.co...

    The answer provided to you is in the nature of general information. The general proposition being that you should... more

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