June 9, 2014
Defense put 22 NYCRR 130.1 as very last affirmative defense. If I wait to address this defense if its included in a future defense initiated summary judgement motion instead of making a motion to strike or dismiss that affirmative defense now, will my case get squashed prior to defense moving for summary judgement? Does defense have to include 22NYCRR 130.1 in summ judgement motion to hold me liable or is the assertion of that defense in their answer enough to hold me liable if I don't CPLR 3211 or motion to strike it?
The burden of proving affirmative defenses is on the defendant, but you don't say anything in your question about the nature of the case you're bringing. If they make any motion asking the court to dismiss the case because it's frivolous, you can oppose their motion then. I agree with my colleague in asking are you a lawyer. It would be unwise for a pro se to think the internet is an alternative to hiring a lawyer.
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