Abney v. Lunsford

254 A.D.2d 318, 678 N.Y.S.2d 292, 1998 N.Y. App. Div. LEXIS 10789

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 13, 1998
• Status: Published

Opinion

In an action, inter alia, to recover damages for assault and battery, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Silverman, J.), entered October 16, 1997, as granted those branches of the plaintiffs’ cross motion which were to dismiss the first, third, sixth, seventh, eighth, ninth, twelfth, and thirteenth affirmative defenses contained in his answer.

Ordered that the order is affirmed insofar as appealed from, with costs.

Upon a motion to dismiss a defense, the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed (see, Becker v Elm Air Conditioning Corp., 143 AD2d 965). If there is any doubt as to the availability of a defense, it should not be dismissed (see, Becker v Elm Air Conditioning Corp., supra', Duboff v Board of Higher Educ., 34 AD2d 824). Affording the defendant every reasonable intendment of the pleading, the dismissal of the first, third, sixth, seventh, eighth, ninth, twelfth, and thirteenth affirmative defenses was proper, as such defenses are without merit.

The defendant’s remaining contentions are without merit. O’Brien, J. P., Thompson, Sullivan and Friedmann, JJ., concur.