Staten Island-Arlington, Inc. v. Wilpon

Appellate Division of the Supreme Court of New York

Staten Island-Arlington, Inc. v. Wilpon

251 A.D.2d 650, 676 N.Y.S.2d 469, 1998 N.Y. App. Div. LEXIS 7954

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 29, 1998

StatusPublished

Cited by5 cases

This text of 251 A.D.2d 650 (Staten Island-Arlington, Inc. v. Wilpon) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Staten Island-Arlington, Inc. v. Wilpon, 251 A.D.2d 650, 676 N.Y.S.2d 469, 1998 N.Y. App. Div. LEXIS 7954 (N.Y. Ct. App. 1998).

Pincite

Opinion

—In an action to recover damages, inter alia, for trespass and nuisance, the plaintiff appeals from an order of the Supreme Court, Richmond County (Cusick, J.), dated December 17, 1997, which, inter alia, denied its motion for partial summary judgment against the defendant Kenneth I. Wilpon on the issue of liability for trespass and nuisance, and to strike his affirmative defenses.

Ordered that the order is modified, on the law, by deleting the provision thereof which denied that branch of the plaintiffs motion which was to strike the affirmative defenses of the defendant Kenneth I. Wilpon, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the appellant.

The first affirmative defense alleges that the plaintiff failed to state a cause of action. However, “[i]n this judicial department, a defense that a complaint does not state a valid cause of action cannot be interposed in an answer, but must be raised by appropriate motion pursuant to CPLR 3211 (a) (7)” (Propoco, Inc. v Birnbaum, 157 AD2d 774, 775; see also, Platt v Portnoy, 220 AD2d 652; Bentivegna v Meenan Oil Co., 126 AD2d 506). Accordingly, this affirmative defense is stricken.

The second and third affirmative defenses must also be dismissed since the submissions with respect to those defenses are wholly conclusory in nature (see, Propoco, Inc. v Birnbaum, supra; Drake Am. Corp. v Speakman Co., 144 AD2d 529).

The Supreme Court properly denied the plaintiffs motion for partial summary judgment on the issue of liability, as ques[651]*651tions of fact remain as to whether the actions of Kenneth I. Wilpon’s partner were outside the ordinary course of the business of the partnership, or, in the alternative, whether Wilpon knew of and authorized those actions (see, Partnership Law § 24; Gramercy Equities Corp. v Dumont, 72 NY2d 560; Ottinger v Dempsey, 161 AD2d 691). Bracken, J. P., Copertino, McGinity and Luciano, JJ., concur.

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—In an action to recover damages, inter alia, for trespass and nuisance, the plaintiff appeals from an order of the Supreme Court, Richmond County (Cusick, J.), dated December 17, 1997, which, inter alia, denied its motion for partial summary judgment against the defendant Kenneth I. Wilpon on the issue of liability for trespass and nuisance, and to strike his affirmative defenses.

Ordered that the order is modified, on the law, by deleting the provision thereof which denied that branch of the plaintiffs motion which was to strike the affirmative defenses of the defendant Kenneth I. Wilpon, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the appellant.

The first affirmative defense alleges that the plaintiff failed to state a cause of action. However, “[i]n this judicial department, a defense that a complaint does not state a valid cause of action cannot be interposed in an answer, but must be raised by appropriate motion pursuant to CPLR 3211 (a) (7)” (Propoco, Inc. v Birnbaum, 157 AD2d 774, 775; see also, Platt v Portnoy, 220 AD2d 652; Bentivegna v Meenan Oil Co., 126 AD2d 506). Accordingly, this affirmative defense is stricken.

The second and third affirmative defenses must also be dismissed since the submissions with respect to those defenses are wholly conclusory in nature (see, Propoco, Inc. v Birnbaum, supra; Drake Am. Corp. v Speakman Co., 144 AD2d 529).

The Supreme Court properly denied the plaintiffs motion for partial summary judgment on the issue of liability, as ques[651]*651tions of fact remain as to whether the actions of Kenneth I. Wilpon’s partner were outside the ordinary course of the business of the partnership, or, in the alternative, whether Wilpon knew of and authorized those actions (see, Partnership Law § 24; Gramercy Equities Corp. v Dumont, 72 NY2d 560; Ottinger v Dempsey, 161 AD2d 691). Bracken, J. P., Copertino, McGinity and Luciano, JJ., concur.

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251 A.D.2d 650, 676 N.Y.S.2d 469, 1998 N.Y. App. Div. LEXIS 7954, Counsel Stack Legal Research, https://law.counselstack.com/opinion/staten-island-arlington-inc-v-wilpon-nyappdiv-1998.

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