South Point, Inc. v. Redman

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: RUTH C. BALKIN
• Citation: South Point, Inc. v. Redman, 94 A.D.3d 1086, 943 N.Y.S.2d 543, 2012 N.Y. Slip Op. 3165 (N.Y. App. Div. 2012)
• Decision Date: 24 April 2012
• Parties: SOUTH POINT, INC., etc., appellant, v. Thanya REDMAN, et al., defendants,Helen M. Prescod, respondent.

2012 N.Y. Slip Op. 03165

94 A.D.3d 1086

943 N.Y.S.2d 543

SOUTH POINT, INC., etc., appellant,

v.Thanya REDMAN, et al., defendants,Helen M. Prescod, respondent.

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

April 24, 2012.

Sanders, Gutman & Brodie, P.C., Brooklyn, N.Y. (Alan L. Lebowitz, Robert Gutman, and D. Michael Roberts of counsel), for appellant.

Cheng & Fasanya, LLP, Rosedale, N.Y. (Ade Fasanya and Dawn M. Shammas of counsel), for respondent.

RUTH C. BALKIN, J.P., ARIEL E. BELEN, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Gavrin, J.), dated May 25, 2011, which denied its motion pursuant to CPLR 3211(b) to dismiss the affirmative defense asserted by the defendant Helen M. Prescod and granted the application of the defendant Helen M. Prescod, in effect, pursuant to 22 NYCRR 130–1.1 for an award of an attorney's fee incurred in defense of the motion in the sum of $1,543.75.

ORDERED that on the Court's own motion, the notice of appeal from so much of the order dated May 25, 2011, as granted the application of the defendant Helen M. Prescod, in effect, pursuant to 22 NYCRR 130–1.1 for an award of an attorney's fee incurred in defense of the plaintiff's motion in the sum of $1,543.75 is deemed an application for leave to appeal from that portion of the order, and leave to appeal is granted ( see CPLR 5701[a] ); and it is further,

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting the application of the defendant Helen M. Prescod, in effect, pursuant to 22 NYCRR 130–1.1 for an award of an attorney's fee incurred in defense of the plaintiff's motion in the sum of $1,543.75, and substituting therefor a provision denying the application; as so modified, the order is affirmed, without costs or disbursements.

The Supreme Court erred in determining that the doctrine of law of the case precluded the granting of the plaintiff's motion pursuant to CPLR 3211(b) to dismiss the affirmative defense asserted by the defendant Helen M. Prescod. The doctrine of law of the case “applies to determinations which were necessarily resolved on the merits in [a] prior order” ( Hampton Val. Farms, Inc. v. Flower & Medalie, 40 A.D.3d 699, 701, 835 N.Y.S.2d 678; see Lehman v. North Greenwich Landscaping, LLC, 65 A.D.3d 1293, 1294, 887 N.Y.S.2d 133). Here, contrary to the Supreme Court's determination, the prior order at issue did not address the merits of Prescod's affirmative defense ( see Lehman v. North Greenwich Landscaping, LLC, 65 A.D.3d at 1294, 887 N.Y.S.2d 133).

Nevertheless, we affirm the denial of the plaintiff's motion to dismiss Prescod's affirmative defense, albeit on a different ground from that relied upon by the Supreme Court ( see Montalvo v. Nel Taxi Corp., 114 A.D.2d 494, 494, 494 N.Y.S.2d 406; see also Menorah Nursing Home v. Zukov, 153 A.D.2d 13, 19, 548 N.Y.S.2d 702). “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] ). Upon such a motion, the movant bears the burden of demonstrating that a defense is not stated or is without merit as a matter of law ( see Butler v. Catinella, 58 A.D.3d 145, 148, 868 N.Y.S.2d 101; Vita v. New York Waste Servs., LLC, 34 A.D.3d 559, 559, 824 N.Y.S.2d 177). The nonmoving defendant is “entitled to the benefit of every reasonable intendment of its pleading, which is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed” ( Federici v. Metropolis Night Club, Inc., 48 A.D.3d 741, 743, 853 N.Y.S.2d 160; see Butler v. Catinella, 58...