It is critical that defense counsel review all affirmative defenses with their clients to assure there aren’t any affirmative defenses available.  If you don’t raise the affirmative defense in the first responsive pleading (i.e., the answer to the complaint or motion to dismiss the complaint) then the affirmative defense will be waived as a matter of law in New York.

In Eida v. Board of Managers of 135 Condominium, the condominium board of managers did not raise affirmative defenses of statute of limitations or standing and the Appellate Division First Department held that the condo thus waived the right to defend itself with those defenses which could be case finishing.  In that case, Isaac Eida complained that the amendment of the condo’s by-laws was void because the Board did not abide by notice requirements in seeking an amendment.

The Court also held that the lower court  “erred in granting defendant attorneys’ fees since such award was not authorized by agreement between the parties or by statute (see e.g. Chapel v Mitchell , 84 NY2d 345, 349 [1994]), and defendant did not contend that plaintiff engaged in frivolous conduct.”

The lesson here is that the defendant condo and its attorney should have made sure it raised all the condo’s affirmative defenses.  If it had, the case likely would have been over.  Now the condo has to defend the case on the merits.  An approach the condo might take is just to call another meeting seeking an amendment of the by-laws and make sure it satisfies all the requirements for their to be an effective amendment.

Here is the Court’s decision.