Warwick v. Cruz

270 A.D.2d 255, 704 N.Y.S.2d 849, 2000 N.Y. App. Div. LEXIS 2530

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 6, 2000
• Status: Published

Opinion

—In an action pursuant to Human Rights Law article 15 to recover damages for sexual harassment, the defendant Chase Manhattan Bank appeals from so much of an order of the Supreme Court, Kings County (Jones, J.), dated March 11, 1999, as granted that branch of the plaintiffs’ motion which was to dismiss the fourth and sixth affirmative defenses contained in its answer.

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