CPLR R. 3211(a)(7) Appellate Division, Second Dep’t Corrects Itself

Hat tip to Damin J. Toell, Esq. for the heads up.

Butler v Catinella, 2008 NY Slip Op 09018 (App. Div., 2nd)

In the context of New York civil litigation, CPLR 3211 is a "bread and
butter" statute. CPLR 3211 encompasses procedural nuances which touch
upon a huge spectrum of factual and legal scenarios. On the instant
appeal, we take the opportunity to reconsider whether the defense of
failure to state a cause of action, a ground listed in CPLR 3211(a)(7),
may properly be interposed in an answer. In several cases, this Court
has stated that this defense may not be included in the answer, but
must be raised by appropriate motion pursuant to CPLR 3211(a)(7). For
the reasons that follow, we conclude that those cases do not articulate
the correct legal standard and, therefore, should no longer reflect the
jurisprudence of the Second Judicial Department.


"A party may move for judgment dismissing one or more defenses, on
the ground that a defense is not stated or has no merit" (CPLR
3211[b]). "Upon a motion to dismiss a defense, the defendant is
entitled to the benefit of every reasonable intendment of its pleading,
which is to be liberally construed. If there is any doubt as to the
availability of a defense, it should not be dismissed" (Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743; see Amerada Hess Corp. v Town of Southold, 39 AD3d 442; Warwick v Cruz, 270 AD2d 255). The movants bear "the burden of demonstrating that those defenses [a]re without merit as a matter of law" (Vita v New York Waste Servs.., LLC, 34 AD3d 559, 559).

In granting that branch of the motion, in effect, pursuant to
CPLR 3211(b), which was to dismiss the first defense, namely, that the
verified complaint failed to state a cause of action, the Supreme Court
relied upon certain cases wherein this Court stated that "[i]n this
judicial department, a defense that a complaint does not state a valid
cause of action cannot be interposed [*3]in an answer, but must be raised by appropriate motion pursuant to CPLR 3211(a)(7)" (Propoco, Inc. v Birnbaum, 157 AD2d 774, 775; see Plemmenou v Arvanitakis, 39 AD3d 612, 613; Jacobowitz v Leak, 19 AD3d 453, 455; Citibank, N.A. v Walker, 12 AD3d 480, 481; Petracca v Petracca, 305 AD2d 566, 567; Staten Is. Arlington, Inc., v Wilpon, 251 AD2d 650; Sagevick v Sanchez, 228 AD2d 488, 489; Guglielmo v Roosevelt Hosp. Staff Hous. Co., 222 AD2d 403, 404; Platt v Portnoy, 220 AD2d 652, 653; Bentivegna v Meenan Oil Co., 126 AD2d 506, 507-508; Bazinet v Lorenz, 70 AD2d 582; Glesnesk v Guidance Realty Corp., 36 AD2d 852, 853).

It appears that the articulation of the rule prohibiting a
defense that a complaint does not state a valid cause of action from
being interposed in an answer originated in the statutory language of
the 1877 Code of Civil Procedure, a predecessor to the modern day Civil
Practice Law and Rules. The Code of Civil Procedure provided that a
defendant may demur to the complaint where, inter alia, the
objection "[t]hat the complaint does not state facts sufficient to
constitute a cause of action" appeared upon the face of the complaint
(Code Civil Procedure § 488[8]). Consistent therewith, in Falk v MacMasters (197
App Div 357, 362), decided on June 10, 1921, this Court held that
"[t]he defense that the complaint does not state facts sufficient to
constitute a cause of action cannot be taken by answer. If the
complaint is deficient in its allegations, that defect appears on the
face of the complaint and should be taken by demurrer" (emphasis
added). A demurrer is defined as "a pleading stating that although the
facts alleged in a complaint may be true, they are insufficient for the
plaintiff to state a claim for relief and for the defendant to frame an
answer" (Black's Law Dictionary 465 [8th ed 2004]).

In 1920, the Civil Practice Act abolished demurrer (see Civil
Practice Act § 277). In this regard, Civil Practice Act § 277 provided,
in relevant part, "[t]he demurrer is abolished. An objection to a
pleading in point of law, for a ground appearing on the face of the
pleading, may be taken by motion or by the answering pleading." In
1921, the Civil Practice Act was amended. As amended, section 277 of
the Civil Practice Act omitted, inter alia, the words "or by the
answering pleading." Thus, an objection to a pleading had to be taken
by motion and could not be asserted in an answer. Also in 1921, the
Civil Practice Act was supplemented by the Rules of Civil Practice. As
per Rule 106(5) of the Rules of Civil Practice, "[w]ithin twenty days
after the service of the complaint, the defendant may serve notice of
motion for judgment dismissing the complaint, or one or more causes of
action stated therein, where it appears on the face thereof: That the
complaint does not state facts sufficient to constitute a cause of
action."

The CPLR was enacted by the Legislature in 1962 (see L
1962, ch 308, as amended by L 1962, chs 315, 316, and 318) and went
into effect on September 1, 1963, thereby replacing the former Civil
Practice Act and the Rules of Civil Practice. CPLR 3211(e) provides, in
relevant part, that "[a]t any time before service of the responsive
pleading is required, a party may move on one or more of the grounds
set forth in subdivision (a), and no more than one such motion shall be
permitted." Significantly, since the initial enactment of the CPLR, and
continuing to the present version, CPLR 3211(e) provides that a "motion
based upon a ground specified" in CPLR 3211(a)(7), namely, that "the
pleading fails to state a cause of action" may be made at any
subsequent time "or [raised] in a later pleading, if one is permitted."
Accordingly, this Court's pronouncement that "a defense that a
complaint does not state a cause of action cannot be interposed in an
answer but must be raised by appropriate motion pursuant to CPLR
3211(a)(7)" runs afoul of the clear language of CPLR 3211(e). That
section expressly permits a defendant to assert or raise, in a
"pleading," the defense that a complaint does not state a cause of
action.

Our sister tribunals in the Appellate Division, First
Department, and Appellate Division, Third Department, have previously
held that pleading the defense of failure to state a cause of action is
unnecessary, constitutes "harmless surplusage," and that a motion by
the plaintiff to strike the same should be denied (Citibank [S.D.] v Coughlin, 274 AD2d 658, 659-660; see Dubois v Vanderwalker, 245 AD2d 758, 760; D'Agostino v Harding, 217 AD2d 835, 836; Schmidt's [*4]Wholesale v Miller & Lehman Constr., 173 AD2d 1004, 1005; Pump v Anchor Motor Frgt., 138 AD2d 849, 850-851; Riland v Todman & Co., 56
AD2d 350). In this regard, the Appellate Division, First Department,
and the Appellate Division, Third Department, opine that no motion by
the plaintiff lies under CPLR 3211(b) to strike the defense, as this
amounts to an endeavor by the plaintiff to test the sufficiency of his
or her own claim (see Riland v Todman & Co., 56 AD2d 350).
The positions taken by those Courts are well-grounded and sound.
Accordingly, we concur with that rationale and adopt it as this Court's
rule of law. To the extent that prior cases from this Court hold
differently, henceforth they should no longer be followed.

Although at the time that the Supreme Court decided the subject
motion it was applying the then-existing precedent of this Court, based
upon the holding adopted herein, that branch of the motion of the
plaintiff and Wagner & Kelly which was to dismiss the first defense
should have been denied.

We note that, in her answer, the appellant denominated the
defense of failure to state a cause of action as an "affirmative
defense." Affirmative defenses, such as those set forth in CPLR
3018(b), as a general rule, would be "deemed waived if not raised in
the pleadings" (Surlak v Surlak, 95 AD2d 371, 383). CPLR 3018(b)
includes two alternative definitions of an affirmative defense. In this
regard, an affirmative defense is any matter "which if not pleaded
would be likely to take the adverse party by surprise" or "would raise
issues of fact not appearing on the face of a prior pleading" (CPLR
3018[b]). CPLR 3018(b) lists those commonly referred to as traditional
affirmative defenses, but concludes that "[t]he application of this
subdivision shall not be confined to the instances enumerated."
Therefore, the list of affirmative defenses included in CPLR 3018(b) is
not all inclusive. In the Practice Commentaries accompanying CPLR 3018,
Professor David D. Siegel instructs that when in doubt as to whether or
not a matter is an affirmative defense, it is best to treat it as a
defense and plead it (see Siegel, Practice Commentaries,
McKinney's Cons Laws of NY, Book 7B, CPLR C3018:16). The defense of
failure to state a cause of action, when asserted in a responsive
pleading (i.e., the answer) is "one of those objections not subject to
the rigid time limits that CPLR 3211(e) otherwise imposes on CPLR
3211(a) objections, so it remains viable whether included in the answer
or not" (Siegel, NY Prac § 269, at 450 [4th ed]). However, a party who
asserts the defense of failure to state a cause of action in a pleading
will not achieve the intended purpose of dismissal, unless and until he
or she makes an appropriate motion.

In sum, the appellant herein had several options available to
her: (1) she could have made a pre-answer motion to dismiss the
complaint based upon the ground that the complaint failed to state a
cause of action; (2) in the absence of a pre-answer motion, she could
have asserted (as, in fact, she did), the defense of failure to state a
cause of action in the answer; or (3) she could have opted to make a
post-answer motion on this ground, irrespective of whether she had made
a pre-answer motion or asserted the defense in the answer, because the
motion to dismiss based upon a ground that the complaint failed to
state a cause of action can be made at any time.

All the bold is mine.

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