Jordan v. Villetto

38 A.D.3d 716, 830 N.Y.S.2d 916

Opinion

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Putnam County (O’Rourke, J.), dated September 15, 2005, as granted the defendants’ cross motion for reformation of the parties’ contract.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the cross motion for reformation of the parties’ contract is denied.

The defendants failed to plead reformation either as an affirmative defense or as a counterclaim. Thus, it was waived (see CPLR 3018 [b]; Apex Two v Terwilliger, 211 AD2d 856, 857-858 [1995]). Accordingly, the Supreme Court erred in granting the defendants’ cross motion for reformation of the parties’ contract.

The defendants’ remaining contentions are without merit Miller, J.P, Schmidt, Ritter and Angiolillo, JJ., concur.