3211(b) dismiss affirmative defenses

3211(b)

South Point, Inc. v Redman, 2012 NY Slip Op 03165 (2nd Dept., 2012)

The Supreme Court erred in determining that the doctrine of law of the case precluded the granting of the plaintiff's motion pursuant to CPLR 3211(b) to dismiss the affirmative defense asserted by the defendant Helen M. Prescod. The doctrine of law of the case "applies to determinations which were necessarily resolved on the merits in [a] prior order" (Hampton Val. Farms, Inc. v Flower & Medalie, 40 AD3d 699, 701; see Lehman v North Greenwich Landscaping, LLC, 65 AD3d 1293, 1294). Here, contrary to the Supreme Court's determination, the prior order at issue did not address the merits of Prescod's affirmative defense (see Lehman v North Greenwich Landscaping, LLC, 65 AD3d at 1294).

Nevertheless, we affirm the denial of the plaintiff's motion to dismiss Prescod's affirmative defense, albeit on a different ground from that relied upon by the Supreme Court (see [*2]Montalvo v Nel Taxi Corp., 114 AD2d 494, 494; see also Menorah Nursing Home v Zukov, 153 AD2d 13, 19). "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 such a motion, the movant bears the burden of demonstrating that a defense is not stated or is without merit as a matter of law (see Butler v Catinella, 58 AD3d 145, 148; Vita v New York Waste Servs., LLC, 34 AD3d 559, 559). The nonmoving 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 Butler v Catinella, 58 AD3d at 148).

Here, the plaintiff failed to satisfy its burden of demonstrating as a matter of law that the defense at issue was without merit. The defense was premised on Prescod's claim that she has a valid mortgage on the subject property with priority over the plaintiff's mortgage. Although the plaintiff raised numerous issues of fact regarding the validity of Prescod's mortgage, the manner in which it was procured, and the extent to which its existence was disclosed to the plaintiff's predecessor in interest, the plaintiff failed to offer evidence demonstrating as a matter of law that Prescod's defense was without merit (cf. Vita v New York Waste Servs., LLC, 34 AD3d at 559). Accordingly, the plaintiff was not entitled to the relief sought.

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