CPLR 3211, 3013, 3016, 3018, 3019

CPLR 3211(a)(7)

CPLR 3016(b)

CPLR 3013

CPLR 3018(b)

CPLR 3019(a)

Friedland Realty, Inc. v 416 W, LLC, 2014 NY Slip Op 06052 [2nd Dept. 2014]

On a motion to dismiss a pleading pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Nonnon v City of New York, 9 NY3d 825, 827; Leon v Martinez, 84 NY2d 83, 87-88; Siracusa v Sager, 105 AD3d 937, 938).

"A claim of mutual mistake is stated where the allegations indicate that the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement" (Aventine Inv. Mgt. v Canadian Imperial Bank of Commerce, 265 AD2d 513, 514; see Chimart Assoc. v Paul, 66 NY2d 570, 573; Phillips v Phillips, 300 AD2d 642, 643). Absent fraud, "the mistake shown must be one made by both parties to the agreement, so that the intentions of neither are expressed in it" (Migliore v Manzo, 28 AD3d 620, 621; see Ribacoff v Chubb Group of Ins. Cos., 2 AD3d 153, 154; Matter of Shaw, 202 AD2d 433, 434). "A claim predicated on mutual mistake must be pleaded with the requisite particularity necessitated under CPLR 3016(b)" (Simkin v Blank, 19 NY3d 46, 52), which provides that "where a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail." Ultimately, the proponent of reformation based on mutual mistake must demonstrate the particulars of the actual agreement intended by the parties, based on the particularized allegations in the complaint (see Chimart Assoc. v Paul, 66 NY2d at 574; George Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 220).

Here, the defendant's second counterclaim and third affirmative defense did not describe the terms of the oral modification that the parties allegedly agreed to, or how those terms differed from the terms of the written agreement. Instead, that counterclaim and affirmative defense recited, in conclusory fashion, that the terms that had actually been agreed to by the parties prior to the writing, and which were allegedly confirmed pursuant to the oral modification, provided that the plaintiff was only entitled to a "reduced fee," but provided no specifics as to the amount of that reduced fee, or under what circumstances such a reduced fee was to be paid. Similarly, the defendant alleged that the plaintiff "was to be compensated for an introduction" to a prospective lessee, but alleged no details as to how its obligation to compensate the plaintiff for securing such an introduction differed from the terms of the written agreement.

Since the allegations of mutual mistake set forth in the defendant's second counterclaim and third affirmative defense were not made with the requisite particularity (see generally CPLR 3016[b]; Greater N.Y. Mut. Ins. Co. v United States Underwriters Ins. Co., 36 AD3d 441, 443), they failed to state a cause of action or defense, respectively, and the Supreme Court correctly granted those branches of the plaintiff's motion which were to dismiss that counterclaim and affirmative defense.

Katz v Miller, 2014 NY Slip Op 05957 [2nd Dept. 2014]

However, the Supreme Court should have granted those branches of the plaintiffs' motion which were for summary judgment striking the first through twelfth affirmative defenses. The second and eleventh affirmative defenses were not substantiated with factual allegations, and were conclusory in nature (see CPLR 3013, 3018[b]; Becher v Feller, 64 AD3d 672, 677; Cohen Fashion Opt., Inc. v V & M Opt., Inc., 51 AD3d 619). The plaintiffs established their prima facie entitlement to judgment as a matter of law striking the first, third through tenth, and twelfth affirmative defenses, and the Toppin defendants failed to raise a triable issue of fact in opposition (see Zuckerman v City of New York, 49 NY2d 557, 562).

The Supreme Court should also have granted those branches of the plaintiffs' motion which were for summary judgment dismissing the second and third counterclaims, which were in the nature of defenses to the complaint and did not assert facts upon which affirmative relief may be granted (see CPLR 3019[a]; P.J.P. Mech. Corp. v. Commerce & Indus. Ins. Co., 65 AD3d 195, 199-200). The Supreme Court properly denied that branch of the plaintiffs' motion which was for summary judgment dismissing the first counterclaim (see Real Property Law § 282).

An unpleaded defense: CPLR § 3018

CPLR § 3018

Sullivan v American Airlines, Inc., 2011 NY Slip Op 00215 (App. Div., 2nd 2011)

The defendants did not waive their contention that the plaintiffs relinquished all claims regarding the statements in the final advisories because they accepted reinstatement. Although the defendants failed to plead as an affirmative defense that the plaintiffs relinquished their claims (see CPLR 3018[b]), an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party (see Lerwick v Kelsey, 24 AD3d 918, 919; Sheils v County of Fulton, 14 AD3d 919, 921; Allen v Matthews, 266 AD2d 782; Rogoff v San Juan Racing Assn., 77 AD2d 831, 832, affd 54 NY2d 883).

Admissions by omission CPLR § 3018(a)

3018 Responsive pleadings
(a) Denials

Miller v Bah, 2010 NY Slip Op 04753 (App. Div., 2nd, 2010)

After first considering the evidence presented by the plaintiff, the
Supreme Court next considered certain admissions made by the defendant.
In this regard, the complaint contained certain allegations concerning
the defendant's ownership and operation of a particular vehicle at the
time of the accident, which the defendant failed to address in his
answer. The defendant therefore was deemed to have admitted the truth of
those allegations
(see CPLR 3018[a]; Maplewood, Inc. v Wood, 21
AD3d 933), and "admissions . . . in pleadings are always in evidence
for all the purposes of the trial of [an] action"
(Braun v Ahmed, 127
AD2d 418, 422 [internal quotation marks omitted]). The Supreme Court
found that even when the evidence was coupled with the defendant's
admissions, the plaintiff failed to "link" the defendant to the
offending vehicle. Thus, the Supreme Court granted the defendant's
motion pursuant to CPLR 4401 for judgment as a matter of law.