Mazzei v. Kyriacou

Decision Date26 September 2012
Citation2012 N.Y. Slip Op. 06285,98 A.D.3d 1088,951 N.Y.S.2d 557
PartiesMichael MAZZEI, appellant, v. Nicole KYRIACOU, etc., et al., respondents.
CourtNew York Supreme Court — Appellate Division

98 A.D.3d 1088
951 N.Y.S.2d 557
2012 N.Y. Slip Op. 06285

Michael MAZZEI, appellant,
v.
Nicole KYRIACOU, etc., et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 26, 2012.


[951 N.Y.S.2d 558]


Law Offices of Kenneth J. Weinstein, P.C., Garden City, N.Y. (Michael J. Langer of counsel), for appellant.


DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ.


[98 A.D.3d 1088]In an action, inter alia, for a judgment declaring that the plaintiff's rights to ownership of certain real property are superior to the rights of the defendants, the plaintiff appeals, as limited by 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 CPLR 3211(b) to dismiss the first, second, third, fourth, first-numbered fifth,

[951 N.Y.S.2d 559]

second-numbered fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth affirmative defenses, pursuant to CPLR 3024(b) to strike the ninth affirmative defense, and pursuant to CPLR 3211(a)(7) to dismiss the defendants' first, second, third, and fourth counterclaims.

ORDERED that the order is modified, on the law, (1) by deleting the provisions thereof denying those branches of the plaintiff's motion which were pursuant to CPLR 3211(b) to dismiss the first, second, fourth, first-numbered fifth, second-numbered fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth affirmative defenses, and substituting therefor a provision granting those branches of the plaintiff's motion, and (2) by deleting the provisions thereof denying those branches of the plaintiff's motion which were pursuant to CPLR 3211(a)(7) to dismiss the defendants' first, second, third, and fourth counterclaims and substituting 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 a defense is not stated or has no merit” (CPLR 3211[b]; see [98 A.D.3d 1089]Galasso, Langione & Botter, LLP v. Liotti, 81 A.D.3d 880, 882, 917 N.Y.S.2d 664). “[W]hen moving to dismiss or strike an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is ‘without merit as a matter of law’ ” ( Greco v. Christoffersen, 70 A.D.3d 769, 771, 896 N.Y.S.2d 363, quoting Vita v. New York Waste Servs., LLC, 34 A.D.3d 559, 559, 824 N.Y.S.2d 177). “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” ( Fireman's Fund Ins. Co. v. Farrell, 57 A.D.3d 721, 723, 869 N.Y.S.2d 597). The...

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  • Dee v. Rakower
    • United States
    • New York Supreme Court — Appellate Division
    • November 13, 2013
    ...contain sufficient particular allegations from which a cognizable cause of action can reasonably be found ( see Mazzei v. Kyriacou, 98 A.D.3d 1088, 1090, 951 N.Y.S.2d 557). Here, the Supreme Court, in its detailed 18–page decision and order, applied the proper legal standard to the defendan......
  • 1710 Owners Corp. v. Sussman
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    ... ... the affirmative defense is without merit as a matter of law ... McKinney's CPLR 3211(b); Mazzei v. Kyriacou, ... 98 A.D.3d 1088, 951 N.Y.S.2d 557 (2012);"A party may ... move for judgment dismissing one or more defenses, on the ... ground ... ...
  • Edwards v. Walsh, 2016–06326
    • United States
    • New York Supreme Court — Appellate Division
    • February 20, 2019
    ...plaintiff met his burden of demonstrating that this affirmative defense was without merit as a matter of law (see Mazzei v. Kyriacou, 98 A.D.3d 1088, 1089, 951 N.Y.S.2d 557 ; Greco v. Christoffersen, 70 A.D.3d at 771, 896 N.Y.S.2d 363 ).The parties' remaining contentions are without merit. ......
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    ...250, 767 N.Y.S.2d 418 [1st Dept. 2003] citing McGill v. Parker, 179 A.D.2d 98, 105, 582 N.Y.S.2d 91 [1st Dept. 1992]; Mazzei v. Kyriacou, 98 A.D.3d 1088, 1090, 951 N.Y.S.2d 557 [2d Dept. 2012]; see also Cron v. Hargro Fabrics, 91 N.Y.2d 362, 366, 670 N.Y.S.2d 973, 694 N.E.2d 56 [1998] ). Th......
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