South Brooklyn Ry. Co. v. Heung Man Lau, 2024 NY Slip Op 24139 (2024)

Citation: South Brooklyn Ry. Co. v. Heung Man Lau, 2024 NY Slip Op 24139 (2024)
Parent Document: South Brooklyn Ry. Co. v. Heung Man Lau, 2024 NY Slip Op 24139 (2024)
Jurisdiction: New York (state)
Effective Date: 2024-05-07
Original Source: https://www.courtlistener.com/opinion/9500911/south-brooklyn-ry-co-v-heung-man-lau/ ↗

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II. Dismissal of Affirmative Defenses is Partially Granted.
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." The movant bears the burden of demonstrating that the affirmative defense is without merit as a matter of law (see Greco v Christoffersen, 70 AD3d 769, 771 [2d Dept 2010]). In reviewing such a motion, the Court must liberally construe the pleadings in Respondent's favor and give it the benefit of every reasonable inference (id.). A defense should not be dismissed if there is any doubt as to the availability of the defense (see Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743 [2d Dept 2008]). Once the movant properly submits evidence attacking the factual basis of a defense, the burden shifts to opposing party to come forth with sufficient evidence to raise an issue of fact with respect to the defense (see Rotondi v Drewes, 31 AD3d 734, 736 [2d Dept 2006]). If a movant seeks to challenge the factual basis of a defense, it must do so by an affidavit of someone with personal knowledge (or other evidence); an attorney's affidavit is insufficient for this purpose (see Becker v Elm Air Conditioning Corp., 143 AD2d 965, 966 [2d Dept 1998]). Here, Petitioner seeks dismissal of all twelve affirmative defenses. Respondent summarily opposes dismissal, contending that Petitioner failed to meet its burden in support of dismissal (see Respondent's mem of law in opp at 9-10).

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