47-05 Ctr. SPE L.L.C. v. Hack, 2025 NY Slip Op 25129 (2025)

Citation: 47-05 Ctr. SPE L.L.C. v. Hack, 2025 NY Slip Op 25129 (2025)
Parent Document: 47-05 Ctr. SPE L.L.C. v. Hack, 2025 NY Slip Op 25129 (2025)
Jurisdiction: New York (state)
Effective Date: 2025-05-28
Original Source: https://www.courtlistener.com/opinion/10594925/47-05-ctr-spe-llc-v-hack/ ↗

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The only other affirmative defense asserted by Respondent at trial was its claim, raised for the first time in his post-trial summation, that Petitioner failed to demonstrate that, as a foreign limited liability company, it complied with New York Limited Liability Company Law § 808 in obtaining a certification authorizing it do business in New York. Such a defense, challenging Petitioner's capacity to commence a legal proceeding, was waived upon Respondent's failure to interpose the defense in his answer (see Kapitus Servicing, Inc. v Epazz, Inc., 231 AD3d 408 [1st Dept 2024]; Jacin Invs.Corp. N.V. v Von Gogt, 196 NYS 3d [App Term, 1st Dept 2023]; Rimberg v Horowitz, 206 AD3d 832 [2d Dept 2022]; Caring People Mgt. Servs., LLC v Assistcare Home Health Servs. LLC, 162 AD3d 509 [1st Dept 2018]). Had Respondent raised the defense in rebuttal, prior to summation, the court could have considered an oral motion to amend the pleadings to conform to the proof insofar as a waived affirmative defense can generally be revived in the absence of prejudice, even during a trial (see Deutsche [*6]Bank Natl. Trust Co. v Groder, 218 AD3d 542 [2d Dept 2023]); Four Thirty Realty LLC v Kamal, 83 Misc 3d 138 [App Term, 1st Dept 2024]; Thanasoulis v Shapiro, 81 Misc 3d 132 [App Term, 1st Dept 2023]). However, in such a case, Petitioner, who claims in its post-trial memorandum of law that it is duly authorized to do business in New York and merely did not offer such evidence in the absence of a challenge to its authority, would have had the opportunity to demonstrate its capacity via rebuttal. Instead, Respondent attempted to ambush Petitioner at the conclusion of trial with an unpreserved, affirmative defense, a tactical stratagem that this court will not condone.

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