Opinion
March 8, 1976
In a negligence action to recover damages for personal injuries, defendant Thomas Leigh-Mannell appeals from an order of the Supreme Court, Suffolk County, entered April 25, 1975, which, after a hearing held on his motion to modify or reargue a prior order of the same court, dated June 20, 1974, struck the affirmative defense of release as contained in his answer. Order affirmed, with costs. Ordinarily the only issue presented upon a motion to strike an affirmative defense is whether there is any legal or factual basis for the assertion of the defense. Special Term recognized this principle in its order dated October 2, 1974, when it directed that a hearing be held to determine the legal sufficiency of the affirmative defense of general release as contained in appellant's answer. Special Term conducted a full-scale hearing on the facts and, at the conclusion thereof, struck the defense. As conceded by appellant on the argument of this appeal, neither party objected to the nature of the hearing. We hold, therefore, that Special Term could and did properly make findings as to the efficacy of the general release; the parties had charted their own course of procedure and are now bound by the result (see Cullen v Naples, 31 N.Y.2d 818; Stevenson v News Syndicate Co., 302 N.Y. 81). Cohalan, Acting P.J., Margett, Damiani, Rabin and Hawkins, JJ., concur.