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DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION SUFFICIENT TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT).

The Third Department determined defendant Kain had raised two non-negligent explanations for rear-ending the car in front of him and therefore plaintiffs’ motion for summary judgment was properly denied. Kain had testified that his brakes didn’t work properly and the cars in front of him stopped abruptly. Although Kain had not raised brake failure as an affirmative defense, the court noted that the defense could be considered in opposition to a summary judgment motion absent surprise and provided the moving party has a chance to respond:

The claim that an accident was unavoidable due to brake failure is an affirmative defense … . However, “[e]ven an unpleaded defense may be raised on a summary judgment motion, as long as it would not be likely to surprise the adverse party or raise issues of fact not previously apparent” … .. Accordingly, a nonmovant may invoke a waived defense to defeat a motion for summary judgment if the movant has the opportunity to respond … . Kain testified at his deposition that the brakes in his vehicle failed, and plaintiffs addressed that issue in their moving papers and again in their reply.

… [D]efendants met their burden to provide a nonnegligent explanation for the accident. Kain testified that the brakes did not operate normally when he applied them and, further, that the application of the brakes did not appreciably slow the speed of the vehicle as he approached the vehicles that were stopped at the traffic signal. Further, he testified that his vehicle was relatively new and was in good working order, and that the only mechanical problems he had experienced prior to the accident were unrelated to the brakes. He further testified that the brakes operated properly prior to the accident, the inspection was current and the malfunction caused him to apply his emergency brake. …

Kain also testified [the two cars in front of him] abruptly stopped directly in front of his vehicle. He specifically stated that [plaintiffs’] vehicle approached the intersection without slowing, as if it was going to proceed, and that it stopped immediately when the light turned red, thereby forcing the [car behind plaintiffs’] to also stop abruptly. He further testified that he was traveling at or below the speed limit and that he applied his brakes immediately upon seeing that both vehicles had stopped abruptly in his path. Warner v Kain, 2018 NY Slip Op 04630, Third Dept 6-21-18

​NEGLIGENCE (REAR-END COLLISIONS, DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION SUFFICIENT TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))/REAR-END COLLISIONS (DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION SUFFICIENT TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))/SUMMARY JUDGMENT (A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))/AFFIRMATIVE DEFENSES (SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))/TRAFFIC ACCIDENTS (REAR-END COLLISIONS, DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION SUFFICIENT TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))/BRAKE FAILURE (REAR-END COLLISIONS, DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION SUFFICIENT TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))

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