Parties must plead all matters which if not pleaded would take the adverse party by surprise or would raise an issue of fact not appearing on the face of a prior pleading, pursuant to CPLR 3018[b]. The failure to plead a defense that must be pleaded affirmatively under CPLR 3018(b) is a waiver of that defense. However, an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party. The burden of demonstrating prejudice or surprise is on the party opposing the motion.
Babakhanov v Diaz Austin Assoc., L.P., NY Slip Op 03032 (2d Dep't May 21, 2025)
