availability defense in New York

2025"Moreover, if there is any doubt as to the availability of a defense, it should not be dismissed" ( Shah , 171 AD3d at 974, quoting Wells Fargo Bank N.A. , 160 AD2d at 913; Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743 [2d Dept 2008]).

2025"Moreover, if there is any doubt as to the availability of a defense, it should not be dismissed" ( Shah , 171 AD3d at 974, quoting Wells Fargo Bank N.A. , 160 AD2d at 913; Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743 [2d Dept 2008]).

2025Co. v Farrell , 57 AD3d 721, 723 [2d Dept 2008]). "'[I]f there is any doubt as to the availability of a defense, it should not be dismissed'." ( Gonzalez v Wingate at Beacon , 137 AD3d at 747 [internal citations omitted]; see also Chestnut Realty Corp. v Kaminski , 95 AD3d 1254, 1255 [2d Dept 2012]). and it is the movant's burden to prove that a defense is entirely without merit It was under this standard that the court found respondents' defenses of defective termination were not wholly without merit, and refrained from striking them.

2016Co. v Farrell, 57 AD3d 721, 723 [2008]). “ ‘[I]f there is any doubt as to the availability of a defense, it should not be dismissed’ ” (Chestnut Realty Corp. v Kaminski, 95 AD3d 1254, 1255 [2012], quoting Fireman’s Fund Ins.

2024Further, where any doubt exists "as to the availability of a defense, it should not be dismissed" (tlahrebeski v Molnar, 286 AD2d 891, 891 [4th Dept 200 1]; see also Lewis, 186 AD3d at 697 ).

2024Any doubt as to the availability of the defense or as to whether it should be dismissed should be resolved in favor of the respondent ( see Lewis v US Bank N.A. , 186 AD3d 694, 697 [2d Dept 2020]; Nahrebeski v Molnar , 286 AD2d 891, 891 [4th Dept 2001]).

2021If there is any doubt as to the availability of a defense, it should not be dismissed" ( Warwick v Cruz , 270 AD2d 255, 255 [2000] [citation omitted]).

2012“If there is any doubt as to the availability of a defense, it should not be dismissed” (Warwick v Cruz, 270 AD2d 255 [2000]).

2023As with a motion to dismiss a complaint, all factual assertions in the pleadings are accepted as true and "if there is any doubt as to the availability of a defense, it should not be dismissed" ( id .; see also Butler v Catinella , 58 AD3d 145, 148 [2d Dept 2008]).

2012If there is any doubt as to the availability of a defense, it should not be dismissed” (Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743 [2008]; see Butler v Catinella, 58 AD3d at 148 ).

2025Co. v Farrell , 57 AD3d 721, 723 [2d Dept 2008]). "'[I]f there is any doubt as to the availability of a defense, it should not be dismissed'." ( Gonzalez v Wingate at Beacon , 137 AD3d at 747 [internal citations omitted]; see also Chestnut Realty Corp. v Kaminski , 95 AD3d 1254, 1255 [2d Dept 2012]). and it is the movant's burden to prove that a defense is entirely without merit It was under this standard that the court found respondents' defenses of defective termination were not wholly without merit, and refrained from striking them.

2025"If there is any doubt as to the availability of a defense, it should not be dismissed" ( Gonzalez v Wingate at Beacon , 137 AD3d at 747 [alteration and internal quotation marks omitted]; see Chestnut Realty Corp. v Kaminski , 95 AD3d 1254, 1255 ).

2024Further, where any doubt exists "as to the availability of a defense, it should not be dismissed" (tlahrebeski v Molnar, 286 AD2d 891, 891 [4th Dept 200 1]; see also Lewis, 186 AD3d at 697 ).

2024Any doubt as to the availability of the defense or as to whether it should be dismissed should be resolved in favor of the respondent ( see Lewis v US Bank N.A. , 186 AD3d 694, 697 [2d Dept 2020]; Nahrebeski v Molnar , 286 AD2d 891, 891 [4th Dept 2001]).

2013The Miranda decision made clear, however, that a suspect is never presumed to know his or her rights (see Miranda v Arizona, 384 US at 468 [“The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given”]; People v Bracero, 117 AD2d at 740 ).

2013The Miranda decision made clear, however, that a suspect is never presumed to know his or her rights (see Miranda v Arizona, 384 US at 468 [“The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given”]; People v Bracero, 117 AD2d at 740 ).

2010If there is any doubt as to the availability of a defense, it should not be dismissed” (Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743 [2008]; see Amerada Hess Corp. v Town of Southold, 39 AD3d 442 [2007]; Warwick v Cruz, 270 AD2d 255 [2000]).

2008If there is any doubt as to the availability of a defense, it should not be dismissed (see Amerada Hess Corp. v Town of Southold, 39 AD3d 442 [2007]; Warwick v Cruz, 270 AD2d 255 [2000]).

2001Because of the same qualitative considerations which support the invocation of estoppel in other areas of law, the courts, in more recent years, have recognized the availability of this doctrine as a viable defense in various forms of proceedings involving domestic disputes” (Matter of Ettore I. v Angela D., 127 AD2d 6, 12 [citations omitted]).

1988Because of the same qualitative considerations which support the invocation of estoppel in other areas of law, the courts, in more recent years, have recognized the availability of this doctrine as a viable defense in various forms of proceedings involving domestic disputes.” (Matter of Ettore I. v Angela D., 127 AD2d 6, 12 [1987].) A review of the reported decisions successfully invoking the doctrine of equitable estoppel reveal facts not present in the instant case.

2025Pursuant to CPLR § 3211(b), "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." In reviewing a motion to dismiss a defense or defenses under the statute, "the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference . . . [and] if there is any doubt as to the availability of a defense, it should not be dismissed." ( Staropoli v Agrelopo, LLC , 136 AD3d 791, 792 [2d Dept 2016]).

2025Pursuant to CPLR § 3211(b), "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." In reviewing a motion to dismiss a defense or defenses under the statute, "the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference . . . [and] if there is any doubt as to the availability of a defense, it should not be dismissed." ( Staropoli v Agrelopo, LLC , 136 AD3d 791, 792 [2d Dept 2016]).

2025Co. v Farrell , 57 AD3d 721, 723 [2d Dept 2008]). "'[I]f there is any doubt as to the availability of a defense, it should not be dismissed'." ( Gonzalez v Wingate at Beacon , 137 AD3d at 747 [internal citations omitted]; see also Chestnut Realty Corp. v Kaminski , 95 AD3d 1254, 1255 [2d Dept 2012]). and it is the movant's burden to prove that a defense is entirely without merit It was under this standard that the court found respondents' defenses of defective termination were not wholly without merit, and refrained from striking them.

2025"If there is any doubt as to the availability of a defense, it should not be dismissed" ( Gonzalez v Wingate at Beacon , 137 AD3d at 747 [alteration and internal quotation marks omitted]; see Chestnut Realty Corp. v Kaminski , 95 AD3d 1254, 1255 ).

2024Understood this way, upon this record, plaintiff is not entitled to have defendants' "second," "third" and "fourth" affirmative defenses, based upon Article 51 of the Insurance law, dismissed at this time ( see In re Liquidation of Ideal Mut Ins Co , 140 AD2d 62, 67 [1st Dept 1988] [finding that "[t]he truth of the allegations must be assumed, and if under any view of the facts a defense is stated, the motion must be denied"]; see also Wells Fargo Bank, NA v Rios, 160 AD3d 912 , 913 [2nd Dept 2018] [finding that "if there is any doubt as to the availability of a defense, it should not be dismi

2024Understood this way, upon this record, plaintiff is not entitled to have defendants' "second," "third" and "fourth" affirmative defenses, based upon Article 51 of the Insurance law, dismissed at this time ( see In re Liquidation of Ideal Mut Ins Co , 140 AD2d 62, 67 [1st Dept 1988] [finding that "[t]he truth of the allegations must be assumed, and if under any view of the facts a defense is stated, the motion must be denied"]; see also Wells Fargo Bank, NA v Rios, 160 AD3d 912 , 913 [2nd Dept 2018] [finding that "if there is any doubt as to the availability of a defense, it should not be dismi

2024Once the movant properly submits evidence attacking the factual basis of a defense, the burden shifts to opposing party to come forth with sufficient evidence to raise an issue of fact with respect to the defense ( see Rotondi v Drewes , 31 AD3d 734, 736 [2d Dept 2006]).

2024Once the movant properly submits evidence attacking the factual basis of a defense, the burden shifts to opposing party to come forth with sufficient evidence to raise an issue of fact with respect to the defense ( see Rotondi v Drewes , 31 AD3d 734, 736 [2d Dept 2006]).

2024A plaintiff seeking to dismiss a defense for lack of merit bears a heavy burden to demonstrate that the defense lacks merit as a matter of law (Umoh, 214 AD3d at 1227 ; see also DeThomasis, 148 AD3d at 1339 ).

2024A plaintiff seeking to dismiss a defense for lack of merit bears a heavy burden to demonstrate that the defense lacks merit as a matter of law (Umoh, 214 AD3d at 1227 ; see also DeThomasis, 148 AD3d at 1339 ).

2013The Miranda decision made clear, however, that a suspect is never presumed to know his or her rights (see Miranda v Arizona, 384 US at 468 [“The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given”]; People v Bracero, 117 AD2d at 740 ).

2013The Miranda decision made clear, however, that a suspect is never presumed to know his or her rights (see Miranda v Arizona, 384 US at 468 [“The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given”]; People v Bracero, 117 AD2d at 740 ).

2012Co. v Farrell, 57 AD3d 721, 723 [2008]; see Greco v Christoffersen, 70 AD3d 769, 771 [2010]). “[I]f there is any doubt as to the availability of a defense, it should not be dismissed” (Fireman’s Fund Ins.

2012Co. v Farrell, 57 AD3d 721, 723 [2008]; see Greco v Christoffersen, 70 AD3d 769, 771 [2010]). “[I]f there is any doubt as to the availability of a defense, it should not be dismissed” (Fireman’s Fund Ins.

2010Applying these standards, the plaintiff failed to meet its burden of demonstrating that the defendant’s affirmative defenses “were without merit as a matter of law” (Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2006]; see Butler v Catinella, 58 AD3d at 148 ).

2008The movants bear “the burden of demonstrating that those defenses [a]re without merit as a matter of law” (Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2006]).

2009The dissent also concludes, as the Family Court did, that the availability of the doctrine of equitable estoppel, applicable in a proceeding pursuant to Family Court Act article 5 (see Matter of Shondel J. v Mark D., 7 NY3d 320, 326 [2006]; Matter of Sharon GG. v Duane HH., 95 AD2d 466, 468 [1983], affd 63 NY2d 859, 862 [1984]), warrants the denial of E.T.’s motion to dismiss.

2008We “have long recognized the availability of the doctrine of equitable estoppel as a defense in a paternity proceeding” (Matter of Kristen D., v Stephen D., 280 AD2d 717, 719 [2001]; see Matter of Shondel J. v Mark D., 7 NY3d 320, 326 [2006]; Matter of Peter BB. v Robin CC., 256 AD2d 889, 889-890 [1998]).

2008We “have long recognized the availability of the doctrine of equitable estoppel as a defense in a paternity proceeding” (Matter of Kristen D., v Stephen D., 280 AD2d 717, 719 [2001]; see Matter of Shondel J. v Mark D., 7 NY3d 320, 326 [2006]; Matter of Peter BB. v Robin CC., 256 AD2d 889, 889-890 [1998]).

2001Equitable estoppel has been invoked to “zealously safeguard the welfare, stability and best interests of the child by rejecting untimely challenges affecting his or her legitimacy” (id., at 13), wholly recognizing “the extreme difficulty, if not impossibility, of substituting a stranger for someone who, as a consequence of years of concern and love for a child, has become the ‘psychological’ parent” (id., at 15 [internal quotation marks omitted]; see, Matter of Kristen D. v Stephen D., 280 AD2d 717 ; Matter of Lorie F. v Raymond F., 239 AD2d 659 ; Matter of James BB. v Debora AA., 202 AD2d 852

2007Pleadings are to be liberally construed, and if there is any doubt regarding the availability of a defense, the pleader “ ‘is entitled to the benefit of every reasonable intendment of the pleading’ ” (Brodeur v Hayes, 305 AD2d 754, 755 [2003], quoting Warwick v Cruz, 270 AD2d 255, 255 [2000]).

2005Moreover, pleadings should be liberally construed and defects ignored unless a substantial right is prejudiced (see CPLR 3026), and if there is any doubt as to the availability of a defense, the defendant is entitled to every reasonable intendment of its pleading (see Brodeur v Hayes, 305 AD2d 754, 755 [2003], quoting Warwick v Cruz, 270 AD2d 255 [2000]).

2001Courts have long recognized the availability of the doctrine of equitable estoppel as a defense in a paternity proceeding (see, Jean Maby H. v Joseph H., 246 AD2d 282 ; Matter of Richard W. v Roberta Y., 240 AD2d 812 , lv denied 90 NY2d 809 ; Matter of Lorie F. v Raymond F., 239 AD2d 659, 660 ; Matter of James BB. v Debora AA., 202 AD2d 852, 853 ).

1998Courts have recognized the availability of this doctrine as a defense in various proceedings involving challenges to paternity (see, e.g., Matter of Lorie F. v Raymond F., 239 AD2d 659 [former wife estopped from seeking to compel former husband to undergo HLA blood test to determine parentage after having represented him as the father of the child for eight years and encouraged the development of a parent-child relationship]; Matter of Louise P. v Thomas R., 223 AD2d 592 [father estopped from challenging six-year old order of filiation and support after mother informed him he was not the child

2021Where there is any doubt about the availability of a defense, a pleading, liberally construed, is entitled to every reasonable intendment ( see US Bank N.A. v Nelson , 169 AD3d 110 , 123, affd 36 NY3d 998 ; Youssef v Triborough Bridge & Tunnel Auth. , 24 AD3d 661 ).

2012In the verified answer filed by defendant, the first affirmative defense is that “[plaintiff has failed to state a valid cause of action as to any and all allegations.” The second affirmative defense asserted by defendant is that “[pRaintiff and/or plaintiff’s assignor has not met and fully complied with all conditions precedent to bringing an action against the defendant.” Additionally, defendant’s fourth affirmative defense alleges “[pRaintiff lacks standing to bring this action, as the benefits were not properly assigned.” “[PReadings should be liberally construed and defects ignored unless

2020"In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of [*2] every reasonable inference" ( Bank of N.Y. v Penalver , 125 AD3d 796 , 797 [internal quotation marks omitted]). "[I]f there is any doubt as to the availability of a defense, it should not be dismissed" ( Wells Fargo Bank, N.A. v Rios , 160 AD3d 912 , 913).

2017In moving to dismiss, CPLR 3211 (a) (1) and (7) may be used to seek dismissal of the counterclaim, while a party may move to dismiss a defense pursuant to CPLR 3211 (b) “on the ground that a defense is not stated or has no merit.” “In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference” (Bank of N.Y. v Penalver, 125 AD3d 796, 797 [2d Dept 2015] [internal quotation marks and citations omitted]). “[I]f there is any doubt as to the availabilit

2001Courts have long recognized the availability of the doctrine of equitable estoppel as a defense in a paternity proceeding (see, Jean Maby H. v Joseph H., 246 AD2d 282 ; Matter of Richard W. v Roberta Y., 240 AD2d 812 , lv denied 90 NY2d 809 ; Matter of Lorie F. v Raymond F., 239 AD2d 659, 660 ; Matter of James BB. v Debora AA., 202 AD2d 852, 853 ).

2001Further, because a child’s best interest is of paramount concern in proceedings to establish paternity (see, Matter of James BB. v Debora AA., supra, at 853-854; Matter of Ettore I. v Angela D., 127 AD2d 6, 14 ) and recognizing “that the inevitable effect of destroying the child’s image of her family would be catastrophic and [fraught] with lasting trauma” (Matter of Ettore I. v Angela D., supra, at 15), the “courts are more inclined to impose equitable estoppel to protect the status of a child in an already recognized and operative parent-child relationship” (Matter of Lorie F. v Raymond F.,