Mayers v. D'Agostino

opinion of the court

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

CPLR 3211 (subd [e]) provides, inter alia, that a defense based upon the doctrine of collateral estoppel is waived unless raised either in a responsive pleading or in a motion made before service of the responsive pleading is required.

Defendants raised the defense of collateral estoppel for the first time during the trial. Consequently, defendants waived this defense unless they could obtain leave to amend their answer to include the affirmative defense.

The decision to grant or deny leave to…