FICORP LTD v. [And Other Actions]

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Supreme Court, Appellate Division, First Department, New York.

FICORP, LTD., Plaintiff-Appellant, v. Donna J. GOURIAN, Defendant-Respondent. [And Other Actions]

Decided: July 15, 1999

WILLIAMS, J.P., MAZZARELLI, RUBIN, ANDRIAS and BUCKLEY, JJ. Daniel A. Eigerman, for Plaintiff-Appellant. Mark J. Lawless, for Defendant-Respondent.

Order, Supreme Court, New York County (Charles Ramos, J.), entered August 6, 1997, which to the extent appealed from as limited by plaintiffs' brief, granted the motion of defendant Donna J. Gourian for summary judgment dismissing the complaint in consolidated actions 1, 3, 5 and 9, unanimously affirmed, with costs.

 Since the claims in the above numbered actions were resolved in the global settlement entered among the parties in 1994, release was a viable affirmative defense, and summary judgment was properly granted.   While release was not asserted as an affirmative defense in the answer, it would be permissibly asserted in an amended answer, and thus, the most efficacious course is to deem it asserted, nunc pro tunc, instead of remanding the matter for a motion for leave to amend the answer.   Although CPLR 3211(e) does deem the defense of release waived if not asserted in the answer or in a motion to dismiss, it can be raised in an amended answer in the absence of prejudice (see, Barrett v. Kasco Constr. Co., 56 N.Y.2d 830, 452 N.Y.S.2d 566, 438 N.E.2d 99), inasmuch as it is not a jurisdictional defense (see, Addesso v. Shemtob, 70 N.Y.2d 689, 518 N.Y.S.2d 793, 512 N.E.2d 314).

MEMORANDUM DECISION.