Affirmative Defenses in New York: When a Pleaded Defense Is Not an Admission

Key Takeaways

• In Hollinden v City of New York, the Second Department held that an affirmative defense pleaded in conditional language was not an admission that the employee acted within the scope of his employment.
• New York permits alternative and even inconsistent pleading, so a defense framed as “such acts as were committed in the scope of employment were justified” admits nothing.
• A plaintiff cannot cherry-pick an answer — treating favorable allegations as admissions while disclaiming the unfavorable ones.
• Summary judgment built on a supposed pleading admission collapses when the answer, read whole, denies the underlying fact.

Hollinden v City of New York, 2013 NY Slip Op 05676 (2d Dept. 2013)

I guess this goes into the category: Be careful what you plead? A strange case.

The Decision

“The plaintiff moved for summary judgment against the City on the first cause of action, submitting a certificate of disposition from the Supreme Court, Queens County, indicating that Dennis had been convicted of assault in the third degree and reckless endangerment in the second degree in connection with the assault at issue. The plaintiff contended that the tenth affirmative defense constituted an admission that Dennis had been acting within the scope of his employment. The Supreme Court granted the motion.

The Supreme Court erred in granting the motion. The City’s affirmative defense was that “such acts as were committed … in the scope of employment were justified.” In light of the conditional nature of this language, and the City’s denials that Dennis had in fact been acting within the scope of his employment, the City’s tenth affirmative defense did not constitute an admission. [*2]A plaintiff may not deem those allegations set forth in an answer that are favorable to him or her to be admissions, while refusing to be bound by those allegations that are unfavorable”

The Pleading Framework: Affirmative Defenses and Alternative Pleading

Some background makes the result less strange than it first appears. CPLR 3018(b) requires a defendant to plead as an affirmative defense any matter that would likely surprise the plaintiff or that raises facts outside the complaint — classics include statute of limitations, collateral estoppel, release, and comparative fault. Answers in New York routinely stack a dozen or more such defenses, many of them protective boilerplate pleaded before discovery reveals which ones have legs.

The CPLR blesses that practice. CPLR 3014 expressly authorizes pleading in the alternative and pleading inconsistent theories. A defendant may simultaneously deny that an event occurred and plead that, if it occurred, the plaintiff’s own conduct caused it. Because alternative pleading is lawful, a conditionally worded defense cannot fairly be read as a concession of the facts it hypothesizes. That is precisely how the Second Department read the City’s tenth defense: “such acts as were committed … in the scope of employment were justified” assumes the scope-of-employment fact for argument’s sake — it does not admit it, particularly where the answer elsewhere denied it.

Admissions in Pleadings: Formal Versus Cherry-Picked

There is a real doctrine of pleading admissions — a fact squarely admitted in an answer is a formal judicial admission, and it can be conclusive. The plaintiff in Hollinden tried to leverage that doctrine into something broader: treating one defense, lifted out of context, as an admission of respondeat superior liability while ignoring the City’s express denials of the same fact.

The Second Department’s response supplies the rule of general application: a plaintiff may not deem the favorable allegations of an answer to be admissions while refusing to be bound by the unfavorable ones. A pleading is read as a whole. Where denials and a conditional defense coexist, the pleading admits nothing — and a summary judgment motion premised on the supposed admission fails at the prima facie stage.

Why This Matters for Litigators

For defendants — municipalities, insurance carriers, and any employer facing a respondeat superior claim — Hollinden is reassurance that careful conditional drafting preserves alternative defenses without conceding the predicate facts. The drafting detail did the work here: the words “as were committed” saved the City from its own answer.

For plaintiffs, the case is a caution against building a summary judgment motion on a pleading admission unless the admission is unequivocal and uncontradicted elsewhere in the answer. The same read-the-whole-record discipline that governs collateral estoppel arguments in New York cases governs pleading admissions: isolated language rarely wins motions.

Practice Pointers

• Draft defenses conditionally. “To the extent that” and “such acts as were committed” formulations preserve the defense while admitting nothing.
• Pair every protective defense with denials. Hollinden turned on the combination of conditional language and express denials of scope of employment.
• Plaintiffs: depose before you move. An admission extracted at a deposition is worth far more than an inference squeezed from boilerplate.
• Audit old answers. If an affirmative defense flatly admits a fact rather than hypothesizing it, amend under CPLR 3025 before the pleading is used against you.

Frequently Asked Questions

Can an affirmative defense be used as an admission in New York?

Only if it actually admits a fact unequivocally. Under Hollinden v City of New York, a defense pleaded in conditional language — combined with denials of the underlying fact — is not an admission, because New York permits alternative and inconsistent pleading under CPLR 3014.

What are affirmative defenses under New York law?

CPLR 3018(b) requires a defendant to plead matters that would surprise the plaintiff or raise facts not appearing in the complaint — for example, statute of limitations, release, collateral estoppel, and culpable conduct of the plaintiff. Defenses not pleaded (and not raised by motion) are generally waived, which is why answers plead them protectively.

Can a plaintiff rely on part of an answer and ignore the rest?

No. A plaintiff may not treat the favorable allegations of an answer as binding admissions while refusing to be bound by the unfavorable allegations. Courts read the pleading as a whole when deciding whether it contains an admission.

Related Resources

• Collateral estoppel in New York personal injury cases (Legal Encyclopedia hub)
• Browse the firm’s Legal Encyclopedia for more New York civil procedure coverage
• Long Island personal injury practice
• When CPLR 3212(f) discovery limitations do not apply in summary judgment motions
• Understanding CPLR 3212(g) and when summary judgment relief becomes improper
• How appeals from trial judgments can bring up previously unreviewed summary judgment motions
• The limited scope of documentary evidence under CPLR 3211(a)(1)
• New York No-Fault Insurance Law