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

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?

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Attorney answers 4

Posted

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 queries. The answer provided is NOT definitive. I do NOT know all of the facts of your case and NO attorney-client relationship is established. Please do not use my answer to tell your lawyer what to do. Free advise is worth exactly what you are paying. Trust the lawyer who is charging you for his/her time and expertise. If you can no longer trust your lawyer, then hire someone else. I am always interested in new clients and business opportunities and would welcome your call or email to discuss matters further. For more information, please feel free to visit my website or schedule an appointment.

Asker

Posted

No, I'm not a lawyer. Pro Se.

Asker

Posted

They are saying it's frivolous.

Mitchell Aaron Nathanson

Mitchell Aaron Nathanson

Posted

Their affirmative defense is not properly stated if they are alleging Rule 130.1 and you are not a lawyer.

Posted

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 considered, legal advice, counseling or opinion. You should not act, or refrain from acting, based upon any of the content contained herein. A response to your inquiry itself does not create an attorney-client relationship, and no such relationship may be implied or construed. Responses are general opinion only, and are of course, free to be disregarded.

Posted

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 over 17 years. The above answer, and any follow up comments or emails, is for informational purposes only and not meant as legal advice.

Posted

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/130-1-1-a_final_text.pdf

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

http://www.newyorkpersonalinjuryattorneyblog.com/2011/08/punitive-damages-in-new-york-for-frivolous-suit.html

The answer provided to you is in the nature of general information. The general proposition being that you should try to avoid a bad outcome if you can.