sixth affirmative defense in New York

2019Proper service of the notice required by RPAPL 1303 notice is a condition precedent to the commencement of a foreclosure action, and it is the plaintiff's burden to show compliance with that statute ( see Aurora Loan Servs., LLC v Weisblum , 85 AD3d at 102 ; First Natl.

2019Thus, in support of its motion, inter alia, for summary judgment on the complaint and dismissing the sixth affirmative defense, the plaintiff was required "to prove its allegation by tendering sufficient evidence demonstrating the absence of material issues as to [the applicability of, or] its . . . compliance with, [Section 6-l]" ( Aurora Loan Servs., LLC v Weisblum , 85 AD3d at 106 ; see Alvarez v Prospect Hosp. , 68 NY2d 320, 324 ; U.S. Bank N.A. v Echevarria , 171 AD3d 979 ; Tribeca Lending Corp. v Lawson , 159 AD3d 936 , 938).

2013Under the principles of ordinary negligence, Officer DeMarco’s failure to see what was there to be seen established the plaintiffs entitlement to judgment as a matter of law on the issue of liability (see Mohammad v Ning, 72 AD3d 913 [2010]).

2013Under the principles of ordinary negligence, Officer DeMarco’s failure to see what was there to be seen established the plaintiffs entitlement to judgment as a matter of law on the issue of liability (see Mohammad v Ning, 72 AD3d 913 [2010]).

2025The plaintiff established her prima facie entitlement to judgment as a matter of law dismissing this affirmative defense through the submission of evidence demonstrating that she engaged in diligent efforts to mitigate damages, including by promptly reporting the oil spill and undertaking professional remediation ( see Wilmot v State of New York , 32 NY2d 164, 168 ; Eskenazi v Mackoul , 72 AD3d 1012, 1014 ; Bank of Am., N.A. v J.P.T.

2025The plaintiff established her prima facie entitlement to judgment as a matter of law dismissing this affirmative defense through the submission of evidence demonstrating that she engaged in diligent efforts to mitigate damages, including by promptly reporting the oil spill and undertaking professional remediation ( see Wilmot v State of New York , 32 NY2d 164, 168 ; Eskenazi v Mackoul , 72 AD3d 1012, 1014 ; Bank of Am., N.A. v J.P.T.

2025Finally, with respect to the sixth affirmative defense, asserting that the plaintiff was unlicensed and lacked the necessary training and experience to operate a motorcycle, " 'the absence or possession of a driver's license is not relevant to the issue of negligence' in the operation of a motor vehicle" ( Graham v Jones , 147 AD3d 1369 , 1372 [4th Dept 2017]) and defendants' "mere speculation" that plaintiff lacked the necessary training and experience to operate a motorcycle "is insufficient to defeat plaintiff's entitlement to dismissal of the [sixth] affirmative defense" ( Stickney v Allec

2024The plaintiffs further established their prima facie entitlement to summary judgment dismissing the defendants' sixth affirmative defense, alleging the failure to use seatbelts ( see Giwa v Bloom , 154 AD3d 921, 923 ), the defendants' seventh affirmative defense, alleging lack of personal jurisdiction ( see Simonds v Grobman , 277 AD2d 369 ), and the defendants' eighth affirmative defense, alleging that the action was time-barred ( see CPLR 214[5]).

2024The plaintiffs further established their prima facie entitlement to summary judgment dismissing the defendants' sixth affirmative defense, alleging the failure to use seatbelts ( see Giwa v Bloom , 154 AD3d 921, 923 ), the defendants' seventh affirmative defense, alleging lack of personal jurisdiction ( see Simonds v Grobman , 277 AD2d 369 ), and the defendants' eighth affirmative defense, alleging that the action was time-barred ( see CPLR 214[5]).

2024Finally, the 13th affirmative defense, that the scope of the stipulation was intended to encompass plaintiff’s remaining claims, although rejected by the Appellate Division as a ground for dismissing the action on defendant’s pre-answer motion to dismiss, is not dismissed as the Court’s decision does not constitute the law of the case, and thus defendant can still attempt to prove the defense in this litigation (see Rosen v Mosby, 148 AD3d 1228, 1233 [3d Dept 2017], lv dismissed 30 NY3d 1037 [2017] [order on defendant’s motion to dismiss not law of case as court 152957/2021 FIONDELLA, PAUL vs.

2023Contrary to the defendant's contention, the Supreme Court properly denied his cross-motion to dismiss the complaint insofar as asserted against him, as he failed to affirmatively demonstrate that the plaintiff did not comply with RPAPL 1304 or 1306 ( see HSBC Bank USA, N.A. v Viverito , 189 AD3d 800, 801 ).

2017Defendant's tenth affirmative defense should also have been dismissed as an ineffective catchall provision ( see Scholastic Inc. v Pace Plumbing Corp., 129 AD3d 75 [2015]).

2017Defendant's tenth affirmative defense should also have been dismissed as an ineffective catchall provision ( see Scholastic Inc. v Pace Plumbing Corp., 129 AD3d 75 [2015]).

2014Moreover, Hudson argued this issue in its reply papers in support of its motion, and the Supreme Court adjourned the motion for the express purpose of allowing the parties to submit additional evidence and arguments with respect to that issue, thereby obviating any claim of prejudice or surprise by the plaintiff (see Held v Kaufman, 91 NY2d 425, 430 [1998]; Goldstein v Town of Warwick, 87 AD3d 1054 [2011]).

2011Lastly, with respect to the suggestion that informal contact between counsel could have resolved the pleading ambiguity, once again Lepkowski makes clear that defendants are under no obligation to ferret out or assemble the information that section 11 (b) requires claimants to set forth within their pleading (see 1 NY3d at 208 ).

2000This was the ground upon which this action was originally dismissed and was expressly rejected by this Court on appeal ( 241 AD2d 427 , supra).

1998An affirmative defense of failure to state a cause of action cannot be interposed in an answer and therefore, the eighth affirmative defense should have been dismissed (see, Platt v Portnoy, 220 AD2d 652 ).

1998The court erred, however, in granting that part of plaintiffs motion seeking dismissal of the third affirmative defense, which asserts that Local 1071 may not be held liable to plaintiff in its capacity as a labor organization (see, Executive Law § 292 [3]), and the sixth affirmative defense, which asserts that Local 1071 may not be held vicariously liable for the acts of its officer/ employee under the doctrine of respondeat superior (see, Matter of Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d 44, 53 , lv denied 89 NY2d 809 ).

1994As to the fourth affirmative defense the documents sufficiently disclosed the term of the loan, and defendants, who failed to read the plain language of the loan documents and had the means of comprehending their terms by the exercise of ordinary intelligence, were properly precluded from claiming fraudulent inducement (see, Marine Midland Bank v Embassy E., 160 AD2d 420, 422 ).

1994The court properly dismissed the sixth affirmative defense to this foreclosure action since defendants’ unsubstantiated allegations failed to establish that the loan was usurious (see, Indig v Finkelstein, 23 NY2d 728 ) and since, in any event, plaintiff is exempt from the State’s usury laws (12 USC § 1735f-7).

1989Since the controversial letter authored by the defendant was not a communication made in the course of a judicial proceeding, we conclude that the Supreme Court properly dismissed the defendant’s sixth affirmative defense based on absolute privilege (see, Kenny v Cleary, 47 AD2d 531 ; cf., Toker v Pollak, 44 NY2d 211 , 219).