Practice point: The Appellate Division modified the order denying defendant's summary motion to dismiss in this action to recover damages for medical malpractice and lack of informed consent, granting leave to amend the answer to include the affirmative defense of discharge in bankruptcy. The defense is neither patently insufficient nor palpably devoid of merit, and there would be little or no prejudice resulting from any delay in granting leave to amend.
Student note: Even when a defense is waived under CPLR 3211(e), it can be interposed in an answer amended by leave of court pursuant to CPLR 3025(b), as long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay, and is not palpably insufficient or patently devoid of merit.
Case: Dixon v. Chang, NY Slip Op 01797 (2d Dep't 2016)
Here is the decision.
Tomorrow's issue: An account stated.