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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First Affirmative Defense
Respondent's first affirmative defense alleges that the Petition fails to state a cause of action upon which relief can be granted (see Answer ¶ 13). The Appellate Division, Second Department, in accord with its sister tribunals, held in Butler v Catinella, 58 AD3d 145, 150 (2d Dept 2008), that such an affirmative defense is "harmless surplusage" and a motion to strike the defense should be denied because it amounts to a plaintiff testing the sufficiency of its own claim. Therefore, dismissal of the first affirmative defense is unwarranted.

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