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THE JUDGE SHOULD NOT HAVE DISMISSED DEFENDANTS’ AFFIRMATIVE DEFENSES BECAUSE PLAINTIFF DID NOT REQUEST THAT RELIEF (SECOND DEPT).

The Second Department noted that the judge should not have ordered relief not requested by the plaintiff:

… [T]he Supreme Court erred by, in effect, sua sponte, directing dismissal of all of [defendants’] affirmative defenses to the complaint … . The plaintiff did not move for summary judgment dismissing any of [defendant’s] affirmative defenses, and the court erred in awarding this unrequested relief … .  MacKay v Paliotta, 2021 NY Slip Op 04348, Second Dept 7-15-21

 

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