Opinion
02-18-2015
BANK OF NEW YORK, etc., respondent, v. Jean PENALVER, et al., defendants, Joshua Nesbitt, appellant.
Joshua Nesbitt, Fort Washington, Maryland, appellant pro se. Hoefeimer, Gartlir & Gross, LLP, New York, N.Y. (David L. Birch and Douglas Gross of counsel), for respondent.
Joshua Nesbitt, Fort Washington, Maryland, appellant pro se.
Hoefeimer, Gartlir & Gross, LLP, New York, N.Y. (David L. Birch and Douglas Gross of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Joshua Nesbitt appeals from an order of the Supreme Court, Richmond County (Minardo, J.), dated October 17, 2013, which granted the plaintiff's motion, in effect, inter alia, pursuant to CPLR 3211(a)(7) and CPLR 3211(b) to dismiss his answer, affirmative defenses, and counterclaims.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the plaintiff's motion which were to dismiss the answer, and the first and third affirmative defenses, and substituting therefor a provision denying those branches of the plaintiff's motion; as so modified, the order is affirmed, without costs or disbursements. Pursuant to CPLR 3211(b), "[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] ). When moving to dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is " without merit as a matter of law" ( Vita v. New York Waste Servs., LLC, 34 A.D.3d 559, 824 N.Y.S.2d 177 ; see Ramanathan v. Aharon, 109 A.D.3d 529, 531, 970 N.Y.S.2d 574 ). "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 A.D.3d 721, 723, 869 N.Y.S.2d 597 ; see Mazzei v. Kyriacou, 98 A.D.3d 1088, 1089, 951 N.Y.S.2d 557 ). Here, the Supreme Court should not have granted those branches of the plaintiff's motion which were to dismiss the appellant's first and third affirmative defenses, as it cannot be said at this point that those defenses were without merit (see CPLR 3211[b] ; Ramanathan v. Aharon, 109 A.D.3d at 531, 970 N.Y.S.2d 574 ). Similarly the drastic remedy of dismissal of the appellant's answer was not warranted (cf. CPLR 3216 ).
The appellant's remaining contentions are without merit (see CPLR 3211[a] [7], [b] ).
RIVERA, J.P., BALKIN, DUFFY and LaSALLE, JJ., concur.