Opinion
January 13, 1986
Appeal from the Supreme Court, Westchester County (Ingrassia, J.).
Order affirmed, insofar as appealed from, with costs.
Although appellants raise numerous issues on this appeal, their main contention is that Special Term erred in denying their motion for summary judgment because the amended complaint was based upon an illegal and unenforceable contract between plaintiff and appellant Local Book Publishers, Incorporated. They maintain that while the subject contract appears on its face to be an "employment agreement", it was in fact a device to evade Federal and State income tax. However, it is undisputed that appellants failed to assert the affirmative defense of illegality in both their answers to the original complaint and to the amended complaint. Moreover, the record reveals that the appellants failed to raise this defense in two previous motions for summary judgment which were granted in part.
Contrary to appellants' assertions, the alleged illegality of the contract is not apparent from the allegations in the amended complaint (cf. Herbert F. Darling, Inc. v City of Niagara Falls, 69 A.D.2d 989). Nor may it be concluded, based upon the evidence in the record, that appellants were not required to plead illegality as an affirmative defense because plaintiff was aware that the contract was illegal and, therefore, cannot claim surprise or prejudice (CPLR 3018 [b]; cf. Carlson v Travelers Ins. Co., 35 A.D.2d 351).
In view of these circumstances, we agree with Special Term that the appellants failed to establish their defense "sufficiently to warrant the court as a matter of law in directing judgment in [their] favor" (CPLR 3212 [b]; Krupp v Aetna Life Cas. Co., 103 A.D.2d 252, 261). Lazer, J.P., Bracken, Niehoff and Kooper, JJ., concur.