Affirmative Steps to Preserve Affirmative Defenses

Publication Source: New York Law Journal

A recent decision of the Commercial Division of the Supreme Court in Nassau County resolved several interesting, reoccurring, issues arising from a motion to dismiss affirmative defenses, providing helpful guidance on standards, rules and strategies relating to the pleading of affirmative defenses.

In Armstrong v. Forgione, Index No. 2988/05 (NYLJ, Jan. 8, 2007), Justice Leonard B. Austin was faced with a motion to dismiss all of defendants' affirmative defenses in a shareholder/joint venture dispute alleging, among other things, breach of fiduciary duty. As is customary in New York practice, defendants alleged their nine "affirmative defenses" in general, conclusory terms.

Justice Austin observed the rather amorphous (albeit common) setting with which he was confronted: "This motion is an outgrowth of the nonspecific nature of the pleadings. The amended complaint makes a series of general allegations regarding the parties, the projects and their status. These general allegations are then incorporated by reference into the twelve substantive causes of action. Similarly, the affirmative defenses do not specify against which causes of action or Plaintiffs they are asserted."

Although the pleadings therefore provided the court with little assistance in clarifying and determining the issues, Justice Austin noted the liberal standards applied to affirmative defenses when considering a motion to dismiss under CPLR 3211(b), which require the court to "assume [that] all the factual allegations relating to the affirmative defense are true" and to "give the defendant the benefit of all reasonable inferences that can be drawn from the pleadings and any other extrinsic proof submitted in support of the defense." Moreover, the court observed that "'[i]f there is any doubt as to the availability of the defense, it should not be dismissed.'"

Read the full article in the attached PDF.

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Kevin Schlosser is a Shareholder at Meyer, Suozzi, English & Klein, P.C., where he is Chair of the Litigation and Alternative Dispute Resolution Department which has a full roster of available private judges from virtually all disciplines of law. Mr. Schlosser also authors the popular blog, “New York Fraud Claims,” which analyzes the latest developments concerning civil fraud claims under New York law.

Reprinted with permission by the New York Law Journal.