AN UNPLEADED AFFIRMATIVE DEFENSE MAY BE SUCCESSFULLY RAISED TO DEFEAT A MOTION FOR SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department noted that an unpleaded affirmative defense may be successfully raised to defeat a motion for summary judgment:

Defendants allegedly embezzled over $100,000 from plaintiffs, their alleged former employers. Plaintiffs then commenced this action for fraud, conversion, and breach of fiduciary duty. Defendants both counterclaimed for, inter alia, slander per se and the violations of Labor Law §§ 162 (2), 191 (3), 195 (1) (a), and 195 (5). Defendant Carrie Massaro also counterclaimed for a violation of section 198 and for unpaid overtime under the Federal Fair Labor Standards Act (FLSA) … . * * * … [T]he affidavit of plaintiff …. raises triable issues of fact regarding their potential entitlement to the affirmative defense provided by [Labor Law] section 198 (1-b) (ii). Contrary to defendants’ contention, ” [a]n unpleaded affirmative defense may be invoked to defeat a motion for summary judgment’ ” … . Thus, although the court properly refused to dismiss the [Labor Law] section 195 (1) (a) counterclaims, the court erred in granting defendants summary judgment on those same counterclaims given plaintiffs’ potential entitlement to the affirmative defense under [Labor Law] section 198 (1-b) (ii) … . Salahuddin v Craver, 2018 NY Slip Op 05429, Fourth Dept 7-25-18