On September 10, 2025, the Second Department issued a decision in EMC Mtge. Corp. v. Anderson, 2025 NY Slip Op. 04877, holding that a defendant in default cannot assert an affirmative defense, explaining:
RPAPL 1301(3) provides, in pertinent part, that, while a mortgage foreclosure action is pending, no other action shall be commenced or maintained to recover any part of the mortgage debt, including an action to foreclose the mortgage, without leave of the court in which the former action was brought. The procurement of such leave shall be a condition precedent to the commencement of such other action and the failure to procure such leave shall be a defense to such other action. Noncompliance with RPAPL 1301(3) is an affirmative defense. As such, the defendant, having failed to interpose an answer in the instant action or file a timely pre-answer motion asserting the defense could not properly invoke that defense without first vacating his default and obtaining leave to serve a late answer that asserted RPAPL 1301(3) as an affirmative defense. Accordingly, the Supreme Court should not have granted dismissal of the complaint insofar as asserted against the defendant pursuant to RPAPL 1301(3).
(Internal quotations and citations omitted).