| Mazzei v Kyriacou |
| 2012 NY Slip Op 06285 [98 AD3d 1088] |
| September 26, 2012 |
| Appellate Division, Second Department |
| Michael Mazzei, Appellant, v Nicole Kyriacou, AlsoKnown as Nichole Debonis, et al., Respondents. |
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In an action, inter alia, for a judgment declaring that the plaintiff's rights to ownership ofcertain real property are superior to the rights of the defendants, the plaintiff appeals, as limitedby his brief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J.),dated December 20, 2011, as denied those branches of his motion which were pursuant to CPLR3211 (b) to dismiss the first, second, third, fourth, first-numbered fifth, second-numbered fifth,sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenthaffirmative defenses, pursuant to CPLR 3024 (b) to strike the ninth affirmative defense, andpursuant to CPLR 3211 (a) (7) to dismiss the defendants' first, second, third, and fourthcounterclaims.
Ordered that the order is modified, on the law, (1) by deleting the provisions thereof denyingthose branches of the plaintiff's motion which were pursuant to CPLR 3211 (b) to dismiss thefirst, second, fourth, first-numbered fifth, second-numbered fifth, sixth, seventh, eighth, ninth,tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth affirmative defenses, and substitutingtherefor a provision granting those branches of the plaintiff's motion, and (2) by deleting theprovisions thereof denying those branches of the plaintiff's motion which were pursuant to CPLR3211 (a) (7) to dismiss the defendants' first, second, third, and fourth counterclaims andsubstituting therefor a provision granting those branches of the plaintiff's motion; as so modified,the order is affirmed insofar as appealed from, with costs to the plaintiff.
"A party may move for judgment dismissing one or more defenses, on the ground that adefense is not stated or has no merit" (CPLR 3211 [b]; see Galasso, Langione & Botter, LLP v Liotti, 81 AD3d 880, 882[2011]). "[W]hen moving to dismiss or strike an affirmative defense, the plaintiff bears theburden of demonstrating that the affirmative defense is 'without merit as a matter of law' " (Greco v Christoffersen, 70 AD3d769, 771 [2010], quoting Vita vNew York Waste Servs., LLC, 34 AD3d 559, 559 [2006]). "In reviewing a motion todismiss an affirmative defense, the court must liberally construe the pleadings in favor of theparty asserting the defense and give that party the benefit of every reasonable inference"(Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721, 723 [2008]). The Supreme Courtshould have granted those branches of the plaintiff's motion which were to dismiss the first,second, fourth, first-numbered fifth, sixth, twelfth, fourteenth, and fifteenth affirmative defenses,as those defenses were without merit as a matter of law (see CPLR 3211 [b]; Galasso,Langione & Botter, LLP v Liotti, 81 AD3d at 882; Greco v Christoffersen, 70 AD3dat 771; Vita v New York Waste Servs., LLC, 34 AD3d at 559; Fireman's Fund Ins.Co. v Farrell, 57 AD3d at 723).[*2]
The Supreme Court properly denied that branch of theplaintiff's motion which was to dismiss the third affirmative defense, alleging failure to state acause of action. "[N]o motion by the plaintiff lies under CPLR 3211 (b) to strike the defense [offailure to state a cause of action], as this amounts to an endeavor by the plaintiff to test thesufficiency of his or her own claim" (Butler v Catinella, 58 AD3d 145, 150 [2008]; see CPLR3211 [a] [7]).
Further, the Supreme Court should have granted those branches of the plaintiff's motionwhich were to dismiss the second-numbered fifth, seventh, eighth, ninth, tenth, eleventh, andthirteenth affirmative defenses, as the court lacked subject matter jurisdiction over collateralattacks on a judgment in a prior action (see Matter of Matsos Contr. Corp. v New York State Dept. of Labor, 80AD3d 924, 925 [2011]; Weinstock v Citibank, 289 AD2d 326 [2001]; Mitchell vInsurance Co. of N. Am., 40 AD2d 873, 874 [1972]).
"On a motion to dismiss a complaint or counterclaim pursuant to CPLR 3211 (a) (7) forfailure to state a cause of action, 'the court must afford the pleading a liberal construction, acceptall facts as alleged in the pleading to be true, accord the [opposing party] the benefit of everypossible inference, and determine only whether the facts as alleged fit within any cognizablelegal theory' " (Cerciello v Admiral Ins.Brokerage Corp., 90 AD3d 967, 967 [2011], quoting Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008];see CPLR 3013, 3019 [d]; Glezelis v Halkiopoulos, 61 AD3d 633 [2009]).
The Supreme Court should have granted those branches of the plaintiff's motion which wereto pursuant to CPLR 3211 (a) (7) dismiss the defendants' first, second, third, and fourthcounterclaims. In their first counterclaim, the defendants asserted that, inter alia, the plaintiffbreached a fiduciary duty owed to them. In their second counterclaim, the defendants asserted,inter alia, that the plaintiff owed the defendant Thomas Debonis repayment for a sum he haddisbursed on behalf of the plaintiff's mother and sister. Even accepting as true the facts alleged insupport of the first and second counterclaims, and according the defendants the benefit of everypossible inference, the first and second counterclaims are not supported by sufficiently particularallegations from which it reasonably could be found that the plaintiff breached a fiduciary duty tothe defendants or that the plaintiff owed the defendants repayment of any sum. Thus, theSupreme Court should have granted those branches of the plaintiff's motion which were todismiss the first and second counterclaims (see Cerciello v Admiral Ins. Brokerage Corp.,90 AD3d at 967; Glezelis v Halkiopoulos, 61 AD3d at 633).
The third counterclaim constituted an improper collateral attack on a judgment in a prioraction. Thus, the Supreme Court should have granted that branch of the plaintiff's motion whichwas to dismiss the third counterclaim (see Weinstock v Citibank, 289 AD2d at 326;Mitchell v Insurance Co. of N. Am., 40 AD2d at 874).
In the sixth cause of action in his complaint, the plaintiff sought to impose a constructivetrust in his favor upon the subject property legally owned by, and titled in, the name of thedefendant Nicole Kyriacou. Since such cause of action sought a judgment that "would affect thetitle to, or the possession, use or enjoyment of, real property" (CPLR 6501), it was sufficient tosupport the filing of a notice of pendency (see Ewart v Ewart, 78 AD3d 992 [2010]; Morice v Garritano, 62 AD3d 971[2009]). Therefore, the Supreme Court should have granted that branch of the plaintiff's motionwhich was to dismiss the fourth counterclaim, which alleged that the plaintiff wrongfully filed anotice of pendency against the subject property (see CPLR 6501; Ewart v Ewart,78 AD3d at 992; Morice v Garritano, 62 AD3d at 971).
In light of our determination, we need not reach the plaintiff's remaining contention.Angiolillo, J.P., Dickerson, Belen and Chambers, JJ., concur.