• Lack of Precision in Pleading Results in Waiver of Affirmative Defense
  • April 21, 2011
  • Law Firm: Hiscock Barclay LLP - Syracuse Office
  • Recently, in Jones v. Kalache, 915 N.Y.S.2d 479 (Sup. Ct. Westchester County, Jan. 20, 2011), the trial court addressed the issue of whether pleading an affirmative defense pursuant to CPLR Article 16 -- which governs apportionment of liability among joint tortfeasors -- provided plaintiff with sufficient notice of a comparative negligence defense under CPLR Article 14-A. The trial court concluded that because the defendant failed to plead Article 14-A, and the issue was not raised by defense counsel until the charging conference, counsel waived the defense of comparative negligence.