3211(b)
Chestnut Realty Corp. v Kaminski, 95 AD3d 1254 (2nd Dept. 2012)
A party may move to dismiss a defense "on the ground that a defense is not stated or has no merit" (CPLR 3211 [b]). "In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference" (Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721, 723 [2008]; see Greco v Christoffersen, 70 AD3d 769, 771 [2010]). "[I]f there is any doubt as to the availability of a defense, it should not be dismissed" (Fireman's Fund Ins. Co. v Farrell, 57 AD3d at 723; see Becker v Elm A.C. Corp., 143 AD2d 965, 966 [1988]). Here, the Supreme Court should have granted that branch of the plaintiff's cross motion which was to dismiss the third affirmative defense, which asserted that the complaint failed to state a cause of action, since the complaint was sufficient to state a cause of action.
However, the Supreme Court properly denied that branch of the plaintiff's cross motion which was to dismiss the defendants' other affirmative defenses. Taking the allegations in the first and second affirmative defenses as true, the defendants sufficiently stated an affirmative defense of surrender by operation of law (see e.g. Riverside Research Inst. v KMGA, Inc., 68 NY2d at 691-692), and the plaintiff has not shown that this affirmative defense is without merit as a matter of law. Furthermore, taking the allegations in the fourth affirmative defense as true, the defendants sufficiently stated an affirmative defense of wrongful accounting (see Fireman's Fund Ins. Co. v Farrell, 57 AD3d at 723), and the plaintiff did not show that this affirmative defense is without merit as a matter of law.
See also South Point, Inc. v Redman, 2012 NY Slip Op 03165 (2nd Dept. 2012)
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