XVII. Defenses

I. ABSOLUTE OR QUALIFIED PRIVILEGE

A. ABSOLUTE PRIVILEGE

Elements to prove:

  1. the personal position; or
  2. status of the speaker; and
  3. is limited to the speaker’s official participation in the processes of government.

B. QUALIFIED PRIVILEGE

Elements to prove:

  1. a person makes a bona fide communication;
  2. upon a subject in which he or she has;
    1. an interest;
    2. a legal;
    3. moral; or
    4. social duty;
  3. to speak; and
  4. and the communication is made to a person having a corresponding interest or duty.

II. ACCORD AND SATISFACTION

Elements to prove:

  1. there was a disputed or un-liquidated claim;
  2. between the parties;
  3. that they mutually resolved;
  4. through a new contract;
  5. discharging all or part of their obligations under the original contract.

III. ACT OF GOD DOCTRINE

Elements to prove:

  1. a natural accident such as, among other things, an earthquake, lightning and tornado;
  2. mere bad weather is not sufficient since the conditions must be “severe, unusual and wholly unforeseeable;”
  3. causing the injury;
  4. not a result of human negligence or fault; and
  5. unpreventable by ordinary skill or foresight.

IV. ADVERSE POSSESSION

Elements to prove:

  1. the possession was hostile;
  2. under claim of right;
  3. it was actual;
  4. it was open and notorious;
  5. it was exclusive; and
  6. it was continuous for the statutory period of 10 years.

V. ASSUMPTION OF RISK

Elements to prove for risk doctrine that does not bar recovery, it negates certain duties:

  1. A plaintiff;
  2. Freely assumed a risk; and
  3. Had knowledge of said risk.

VI. CHAMPERTY AND MAINTENANCE

Elements to prove:

  1. no person, co-partnership, corporation or association;
  2. directly or indirectly, itself or by or through its officers, agents or employees;
  3. shall solicit, buy or take an assignment of
    1. thing in action;
    2. any claim; or
    3. demand;
  4. with the intent; and
  5. for the purpose of bringing an action or proceeding.

VII. COLLATERAL ESTOPPEL

Elements to prove:

  1. a subsequent action or proceeding;
  2. to prevent a party;
  3. from re-litigating an issue;
  4. decided against that party in a prior adjudication.

VIII. ECONOMIC INTEREST DEFENSE

Elements to prove, against a claim for either tortious interference with an existing or prospective business relationship:

  1. interference arose through;
  2. an equal or superior right;
  3. more than a mere competitor; and
  4. in the breaching party’s business.

IX. EMERGENCY DOCTRINE

Elements to prove:

  1. faced with a sudden and unexpected circumstance;
  2. not created by the proponent;
  3. where there was little or no time to think, deliberate, consider or the party was so disturbed he or she would not make a decision concerning alternative conduct; and
  4. their actions must be reasonable and prudent considering the situation.

X. EMERGENCY VEHICLE DRIVER DEFENSE

New York Vehicle and Traffic Law § 1104 permits a driver of an authorized emergency vehicle to be exempt from certain road rules when there is an emergency. However, this statute does not protect said drivers from their reckless disregard for the safety of others.

XI. “EMPTY CHAIR”

Elements to prove in liability cases:

  1. It was 50 percent or less at fault; and
  2. the plaintiff was able to establish personal jurisdiction over the culpable non-party.

XII. EQUITABLE ESTOPPEL

Elements to prove:

  1. defendants from asserting a material fact or the statute of limitations defense;
  2. where a party is prevented from filing an action within the applicable statute of limitations;
  3. due to his or her reasonable (or justifiable) reliance on deception, fraud or misrepresentations by the other party asserting the defense;
  4. provided that the party establishes subsequent and specific actions by defendants kept the party from timely filing a lawsuit; and
  5. the party seeking the application of equitable estoppel must demonstrate a lack of knowledge of the true facts.

XIII. FORCE MAJEURE

Elements to prove:

  1. an event or cause;
  2. beyond the party’s reasonable control; and
  3. specifically included as grounds to excuse performance, such as, among other things, hurricanes, floods, acts of terrorism, strikes and wars.

XIV. FRUSTRATION OF PURPOSE DOCTRINE

Elements to prove:

  1. virtually cataclysmic;
  2. unforeseeable event; that
  3. renders the contract valueless to one party.

XV. GENERAL RELEASE

Elements to prove:

  1. in light of the circumstances and knowledge of the parties at the time of settlement, the amount paid cannot fairly be characterized as inadequate;
  2. the general release terms were agreed upon after negotiation and deliberate bargaining;
  3. the injured party was not disadvantaged by dealing directly with the alleged tortfeasor or was represented by competent counsel who explained the meaning and effect of the general release; and
  4. the injured party did not have a mental deficiency as to be incapable of an intelligent comprehension and understanding of the meaning of the act of executing the general release.

XVI. IN PARI DELICTO

Elements to prove:

  1. an equitable defense with boundaries that are determined by state law;
  2. barring a plaintiff from bringing a claim;
  3. against a defendant;
  4. where each party is equally at fault.

XVII. JUDICIAL OR LITIGATION PRIVILEGE

Elements to prove:

  1. the statement or statements were made in the context of a judicial pleading; and
  2. the statement or statements are relevant to the litigation or pertinent to the litigation.

XVIII. LACHES

Elements to prove:

  1. lateness, lengthy neglect or omission to assert a right coupled with; and
  2. significant prejudice to the other side.

XIX. LACK OF INSURANCE COVERAGE

Elements to prove:

  1. the claim arose as a result of staged accident;
  2. the claimant’s injuries are not causally related to the accident;
  3. the medical provider is not properly incorporated pursuant to the New York Business Corporation Law.
  4. the insurance policy was procured by fraud;
  5. an independent contractor performed the medical services;
  6. the insurance policy was cancelled or never issued;
  7. the alleged injuries did not arise out of a motor vehicle’s operation or use or
  8. claimant was not eligible under the PIP Endorsement to the no-fault benefits.

XX. NEW YORK CITY PET LAW

New York City tenants may defend against a holdover proceeding brought by a landlord who alleges a no-pet provision violation pursuant to the New York City Pet Law.

XXI. NOVATION

Elements to prove: 

  1. previous valid obligation or agreement of;
  2. all the parties;
  3. to a new obligation;
  4. extinguishment of the old contract; and
  5. a valid new contract.

XXII. RES ADJUDICATA

Elements to prove: 

  1. a valid final judgment;
  2. barring future actions;
  3. between the same parties;
  4. on the same cause of action;
  5. in that once a claim is brought to a final conclusion;
  6. all other claims arising out of the same transaction or series of transactions are barred; and
  7. even if based upon different theories or if seeking a different remedy.

XXIII. STATUTE OF LIMITATIONS

Elements to prove: 

  1. the opportunity and burden of proving;
  2. that its action;
  3. was commenced;
  4. within the specific designated limitations period; or
  5. its cause of action is predicated upon the actual fraud of the defendant that;
    1. it did not discover; nor
    2. could have discovered with reasonable diligence;
  6. within the appropriate statute of limitations.

XXIV. STATUTE OF REPOSE

Elements to prove: 

  1. a receiving bank received payment from its customer with respect to a payment order;
  2. issued in the name of the customer as sender;
  3. accepted by the bank;
  4. the customer received notification reasonably identifying the order; and
  5. the customer did not notify the bank of the customer’s objection within one year after the notification was received by the customer.

XXV. STORM IN PROGRESS

Elements to prove: 

  1. there was not an adequate (or reasonable) period of time;
  2. after the cessation of the storm;
  3. to allow an opportunity; and
  4. remedy of the hazards caused by the ice and/or snow.

XXVI. WAGONER RULE

Elements to prove: 

  1. the bankrupt corporation, entity or person; provided that
  2. when a bankrupt corporation or its management acting within the scope of their employment;
  3. joined with a third party in defrauding its creditors; and
  4. the trustee may then not recover against the third party for the damage to the creditors.

XXVII. WAIVER

Elements to prove: 

  1. it is done knowingly, voluntarily and intentionally abandoned;
  2. such abandonment to be established by
    1. affirmative conduct; or
    2. failure to act so as to evince an intent not to claim a purported advantage;
  3. waiver is not to be lightly presumed; and
  4. must be based on a “clear manifestation of intent” to relinquish a contractual protection.

the above is an abstract from the Encyclopedia of New York Causes of Action by Ernest Edward Badway, 2018 edition.