| Bank of N.Y. v Penalver |
| 2015 NY Slip Op 01407 [125 AD3d 796] |
| February 18, 2015 |
| Appellate Division, Second Department |
[*1]
| Bank of New York, on Behalf of the Certificate Holders, CWABS, Inc., Asset-Backed Certificates, Series 2007-7,Respondent, v Jean Penalver et al., Defendants, and Joshua Nesbitt,Appellant. |
Joshua Nesbitt, Fort Washington, Maryland, appellant pro se.
Hoefeimer, Gartlir & Gross, LLP, New York, N.Y. (David L. Birch andDouglas Gross of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Joshua Nesbitt appeals from anorder 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 thereofgranting those branches of the plaintiff's motion which were to dismiss the answer, andthe first and third affirmative defenses, and substituting therefor a provision denyingthose branches of the plaintiff's motion; as so modified, the order is affirmed, withoutcosts or disbursements.
Pursuant to CPLR 3211 (b), "[a] party may move for judgment dismissing one ormore defenses, on the ground that a defense is not stated or has no merit." When movingto dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that theaffirmative defense is "without merit as a matter of law" (Vita v New York Waste Servs.,LLC, 34 AD3d 559, 559 [2006]; see Ramanathan v Aharon, 109 AD3d 529, 531 [2013])."In reviewing a motion to dismiss an affirmative defense, the court must liberallyconstrue the pleadings in favor of the party asserting the defense and give that party thebenefit of every reasonable inference" (Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721, 723[2008]; see Mazzei vKyriacou, 98 AD3d 1088, 1089 [2012]). Here, the Supreme Court should nothave granted those branches of the plaintiff's motion which were to dismiss theappellant's first and third affirmative defenses, as it cannot be said at this point that thosedefenses were without merit (see CPLR 3211 [b]; Ramanathan v Aharon,109 AD3d at 531). Similarly the drastic remedy of dismissal of the appellant's answerwas 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.