Warwick v. Cruz

Decision Date06 March 2000
Citation704 N.Y.S.2d 849,270 A.D.2d 255
PartiesTARA WARWICK et al., Respondents,<BR>v.<BR>OCTAVIO CRUZ, Defendant, and CHASE MANHATTAN BANK, Appellant.
CourtNew York Supreme Court — Appellate Division

Thompson, J. P., Feuerstein, Schmidt and Smith, JJ., concur.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiffs' motion which was to dismiss the appellant's fourth and sixth affirmative defenses is denied.

Upon a motion to dismiss a defense, a defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed (see, Abney v Lunsford, 254 AD2d 318). If there is any doubt as to the availability of a defense, it should not be dismissed (see, Becker v Elm Air Conditioning Corp., 143 AD2d 965; Duboff v Board of Higher Educ., 34 AD2d 824). Affording the appellant every reasonable intendment of the pleading, dismissal of the fourth and sixth affirmative defenses was improper under the circumstances.

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23 cases
  • 1691 Fulton Ave. Assocs., LP v. Watson, 58639/2016.
    • United States
    • New York Civil Court
    • May 30, 2017
    ...is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed." Warwick v. Cruz (270 A.D.2d 255, 255, 704 N.Y.S.2d 849 [2nd Dep't 2000] [internal citation omitted ] ). A defense should not be stricken where there are questions of fact re......
  • Family-Friendly Media, Inc. v. Recorder Television Network
    • United States
    • New York Supreme Court — Appellate Division
    • June 1, 2010
    ...Inc., 48 A.D.3d 741, 743, 853 N.Y.S.2d 160; see Amerada Hess Corp. v. Town of Southold, 39 A.D.3d 442, 833 N.Y.S.2d 232; Warwick v. Cruz, 270 A.D.2d 255, 704 N.Y.S.2d 849). Applying these standards, the plaintiff failed to meet its burden of demonstrating that the defendant's affirmative de......
  • 1540 Wallco, Inc. v. Smith, 25657/2016.
    • United States
    • New York Civil Court
    • January 9, 2017
    ...is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed." Warwick v. Cruz (270 A.D.2d 255, 255, 704 N.Y.S.2d 849 [2nd Dep't 2000] [internal citation omitted ] ). A defense should not be stricken where there are questions of fact re......
  • Staropoli v. Agrelopo, LLC
    • United States
    • New York Supreme Court — Appellate Division
    • February 10, 2016
    ...pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference (see Warwick v. Cruz, 270 A.D.2d 255, 704 N.Y.S.2d 849 ; Abney v. Lunsford, 254 A.D.2d 318, 678 N.Y.S.2d 292 ). In addition, if there is any doubt as to the availability of a ......
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