Which statement best describes the requirement for pleading affirmative defenses in New York?

• A. They must be pleaded if they would surprise the opposing party or raise issues not appearing in prior pleadings
• B. They must be pleaded in all cases regardless of impact
• C. They are optional and can never surprise
• D. They are only allowed in matrimonial cases

Answer: (A)

In New York, fair notice is the guiding principle behind pleading affirmative defenses. An affirmative defense is a theory that admits the plaintiff’s facts but provides an additional reason why the claim should fail. The rule is that such defenses must be pleaded in the answer when they would surprise the opposing party or raise issues not already appearing in prior pleadings. This ensures the other side knows what defenses are being asserted and can prepare, respond, or move to strike them before trial. If a defense would not surprise and is already anticipated from the pleadings, it still must be handled properly, but the trigger for requiring a separate pleading is the introduction of new matter that wasn’t previously disclosed. The approach is not limited to matrimonial cases and is not a universal blanket requirement in every situation; the emphasis is on avoiding surprise and giving proper notice.