Defendant Did Not Waive Defense When It Showed During Litigation That it Intended to Assert it

On September 30, 2021, the First Department issued a decision in Gamma Lending Omega LLC v. Kaminski, 2021 NY Slip Op. 05165, holding that a defendant did not waive a collateral estoppel defense when it showed during the litigation that it intended to assert it, explaining:

Plaintiff did not waive the defense of collateral estoppel, because the defense appeared on the face of its pleading. Moreover, plaintiff asserted the preclusive effect of the Minnesota proceedings in its objections to defendants’ document requests. Thus, there was no surprise or new factual issue raised by assertion of the defense, and it was not waived.

(Internal citations omitted).

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