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IN THIS EJECTMENT ACTION, DEFENDANT-TENANT’S “FAILURE TO STATE A CAUSE OF ACTION,” “WAIVER,” “CONSTRUCTIVE EVICTION,” “BREACH OF COVENANT OF QUIET ENJOYMENT,” “IMPROPER NOTICE OF DEFAULT,” AND “TRESPASS” AFFIRMATIVE DEFENSES SHOULD NOT HAVE BEEN DISMISSED; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined several affirmative defenses in this ejectment action should not have been dismissed. Plaintiff landlord sought to eject defendant tenant from a parking lot for nonpayment of rent. Defendant alleged, and plaintiff acknowledged, plaintiff had rented certain parking spaces to a third party. The Second Department held: (1) no motion lies to dismiss a “failure to state a cause of action” defense because plaintiff cannot test the sufficiency of its own claim; (2) the “waiver” defense should not have been dismissed despite the “nonwaiver” provision in the lease; (3) the constructive eviction and breach of covenant of quiet enjoyment defenses were supported by plaintiff’s renting spaces to a third party; (4) the ‘improper notice of default” defense was supported by the plaintiff’s failure to provide the notice called for by the lease; and (5) the “trespass” defense was supported by the rental of spaces to a third party:

CPLR 3211(b) provides that “[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit.” “When moving to dismiss, the plaintiff bears the burden of demonstrating that the affirmative defenses ‘are without merit as a matter of law because they either do not apply under the factual circumstances of [the] case, or fail to state a defense'” … . “‘On a motion pursuant to CPLR 3211(b), the court should apply the same standard it applies to a motion to dismiss pursuant to CPLR 3211(a)(7), and the factual assertions of the defense will be accepted as true'” … . “‘Moreover, if there is any doubt as to the availability of a defense, it should not be dismissed'” … . Diversified Bldg. Co., LLC v Nader Enters., LLC, 2025 NY Slip Op 06047, Second Dept 11-5-25

Practice Point: Consult this decision for insight into the criteria for dismissal of an affirmative defense and the elements of “waiver,” “constructive eviction,” “breach of covenant of quiet enjoyment,” “Improper notice of default,” and “trespass” affirmative defenses as alleged by defendant-tenant in this ejectment action brough by plaintiff-landlord.

 

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