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Criteria for Determining Motions to Dismiss Affirmative Defenses Explained

The Second Department explained the analytical criteria for determining motions to dismiss affirmative defenses:

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” … . “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” … . Bank of NY v Penalver, 2015 NY Slip Op 01407, 2nd Dept 2-18-15

 

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