second affirmative defense in New York

2013Pursuant to Lien Law § 10 (1), notice of a lien “may be filed at any time during the progress of the work and the furnishing of the materials, or, within eight months after the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished.” In opposition to Matell’s prima facie showing of entitlement to judgment as a matter of law dismissing the second affirmative defense, Fleetwood Park raised triable issues of fact as to whether the last item of work was performed or the last mate

2013Pursuant to Lien Law § 10 (1), notice of a lien “may be filed at any time during the progress of the work and the furnishing of the materials, or, within eight months after the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished.” In opposition to Matell’s prima facie showing of entitlement to judgment as a matter of law dismissing the second affirmative defense, Fleetwood Park raised triable issues of fact as to whether the last item of work was performed or the last mate

2013TR U/S 6/01/98 [Home Equity Loan Trust 1998-2] v Alvarez, 49 AD3d 711, 711 [2d Dept 2008].) Plaintiff “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” (See Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].) Plaintiff must tender “evidentiary proof in admissible form.” (See Zuckerman v City of New York, 49 NY2d 557, 562 [1980].) “Where the issue of standing is raised by a defendant, a plaintiff must prove its standing in order to be entitled to relief.” (GRP Loan, LLC v Tayl

2004Thus, we further conclude that there are issues of fact precluding partial summary judgment on the complaint (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

2012We conclude however, that the court erred in denying that part of plaintiffs cross motion seeking to dismiss the second affirmative defense insofar as it alleges that plaintiff failed to mitigate her damages prior to the time she could be held responsible for her actions (see Cunningham v Anderson, 85 AD3d 1370, 1372 [2011], lv dismissed in part and denied in part 17 NY3d 948 [2011]; M.F. v Delaney, 37 AD3d 1103, 1104-1105 [2007]), and the third affirmative defense insofar as it alleges culpable conduct on the part of plaintiffs mother, which sounds in negligent parental supervision (see M.F.,

2012We conclude however, that the court erred in denying that part of plaintiffs cross motion seeking to dismiss the second affirmative defense insofar as it alleges that plaintiff failed to mitigate her damages prior to the time she could be held responsible for her actions (see Cunningham v Anderson, 85 AD3d 1370, 1372 [2011], lv dismissed in part and denied in part 17 NY3d 948 [2011]; M.F. v Delaney, 37 AD3d 1103, 1104-1105 [2007]), and the third affirmative defense insofar as it alleges culpable conduct on the part of plaintiffs mother, which sounds in negligent parental supervision (see M.F.,

2012We conclude however, that the court erred in denying that part of plaintiffs cross motion seeking to dismiss the second affirmative defense insofar as it alleges that plaintiff failed to mitigate her damages prior to the time she could be held responsible for her actions (see Cunningham v Anderson, 85 AD3d 1370, 1372 [2011], lv dismissed in part and denied in part 17 NY3d 948 [2011]; M.F. v Delaney, 37 AD3d 1103, 1104-1105 [2007]), and the third affirmative defense insofar as it alleges culpable conduct on the part of plaintiffs mother, which sounds in negligent parental supervision (see M.F.,

2012We conclude however, that the court erred in denying that part of plaintiffs cross motion seeking to dismiss the second affirmative defense insofar as it alleges that plaintiff failed to mitigate her damages prior to the time she could be held responsible for her actions (see Cunningham v Anderson, 85 AD3d 1370, 1372 [2011], lv dismissed in part and denied in part 17 NY3d 948 [2011]; M.F. v Delaney, 37 AD3d 1103, 1104-1105 [2007]), and the third affirmative defense insofar as it alleges culpable conduct on the part of plaintiffs mother, which sounds in negligent parental supervision (see M.F.,

2012We conclude however, that the court erred in denying that part of plaintiffs cross motion seeking to dismiss the second affirmative defense insofar as it alleges that plaintiff failed to mitigate her damages prior to the time she could be held responsible for her actions (see Cunningham v Anderson, 85 AD3d 1370, 1372 [2011], lv dismissed in part and denied in part 17 NY3d 948 [2011]; M.F. v Delaney, 37 AD3d 1103, 1104-1105 [2007]), and the third affirmative defense insofar as it alleges culpable conduct on the part of plaintiffs mother, which sounds in negligent parental supervision (see M.F.,

2012We conclude however, that the court erred in denying that part of plaintiffs cross motion seeking to dismiss the second affirmative defense insofar as it alleges that plaintiff failed to mitigate her damages prior to the time she could be held responsible for her actions (see Cunningham v Anderson, 85 AD3d 1370, 1372 [2011], lv dismissed in part and denied in part 17 NY3d 948 [2011]; M.F. v Delaney, 37 AD3d 1103, 1104-1105 [2007]), and the third affirmative defense insofar as it alleges culpable conduct on the part of plaintiffs mother, which sounds in negligent parental supervision (see M.F.,

2026The plaintiffs established, prima facie, that the primary assumption of risk doctrine, which "is generally limited to risks arising from voluntary participation in athletic and recreational activities" ( Muniz v SPO Rest., LLC , 227 AD3d 1002, 1004 [internal quotation marks omitted]), is inapplicable under the circumstances of this case ( see Custodi v Town of Amherst , 20 NY3d 83, 87; Muniz v SPO Rest., LLC , 227 AD3d at 1004; cf. Safon v Bellmore-Merrick Cent.

2026The plaintiffs established, prima facie, that the primary assumption of risk doctrine, which "is generally limited to risks arising from voluntary participation in athletic and recreational activities" ( Muniz v SPO Rest., LLC , 227 AD3d 1002 , 1004 [internal quotation marks omitted]), is inapplicable under the circumstances of this case ( see Custodi v Town of Amherst , 20 NY3d 83, 87 ; Muniz v SPO Rest., LLC , 227 AD3d at 1004; cf. Safon v Bellmore-Merrick Cent.

2023However, the motion court did not need to dismiss the second affirmative defense of failure to state a claim because that defense may be asserted at any time, even if not pleaded (CPLR 3211 [e]; San-Dar Assoc. v Fried , 151 AD3d 545, 545-46 [1st Dept 2017]).

2023However, the motion court did not need to dismiss the second affirmative defense of failure to state a claim because that defense may be asserted at any time, even if not pleaded (CPLR 3211 [e]; San-Dar Assoc. v Fried , 151 AD3d 545, 545-46 [1st Dept 2017]).

2011In opposition, defendants failed to raise a triable issue of fact with respect to the fourth cause of action or the merits of the second affirmative defense and counterclaim (see generally Pando v Tapia, 79 AD3d 993, 995 [2010]; NYCTL 1998-2 Trustee v 2388 Nostrand Corp., 69 AD3d 594, 595 [2010]).

2011In opposition, defendants failed to raise a triable issue of fact with respect to the fourth cause of action or the merits of the second affirmative defense and counterclaim (see generally Pando v Tapia, 79 AD3d 993, 995 ; NYCTL 1998-2 Trustee v 2388 Nostrand Corp., 69 AD3d 594, 595 ).

2011In opposition, defendants failed to raise a triable issue of fact with respect to the fourth cause of action or the merits of the second affirmative defense and counterclaim (see generally Pando v Tapia, 79 AD3d 993, 995 [2010]; NYCTL 1998-2 Trustee v 2388 Nostrand Corp., 69 AD3d 594, 595 [2010]).

2011In opposition, defendants failed to raise a triable issue of fact with respect to the fourth cause of action or the merits of the second affirmative defense and counterclaim (see generally Pando v Tapia, 79 AD3d 993, 995 ; NYCTL 1998-2 Trustee v 2388 Nostrand Corp., 69 AD3d 594, 595 ).

2025With respect to the defendant's second affirmative defense, alleging failure to state a cause of action, the defendant is correct that "no motion lies under CPLR 3211(b) to strike this affirmative defense as this amounts to an endeavor by the plaintiff to test the sufficiency of [its] own claim" ( Lewis v US Bank N.A. , 186 AD3d 694, 697 ; see Butler v Catinella , 58 AD3d 145, 150 ).

2024Further, the court properly dismissed the second affirmative defense of estoppel and waiver because defendant did not present evidence that plaintiff made a clear and unambiguous promise to relieve it of its rent obligations if defendant surrendered the premises and that defendant acted in reliance on that promise ( see Matter of Shondel J. v Mark D. , 7 NY3d 320, 326 [2006]).

2024However, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment dismissing the truck defendants' first affirmative defense, alleging culpable conduct on the part of the plaintiff. "[A]lthough a plaintiff is not required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging

2024Tenants Assn. v Cruz , 173 AD2d 338, 339 [1st Dept 1991].) Defendant's tenth affirmative defense asserts that because the co-op accepted the maintenance payment she made to it for March 2024— i.e. , after the expiration of the termination notice served by plaintiff—the "Termination Notice has been vitiated and the Complaint must be dismissed." (NYSCEF No. 14 at ¶ 177.) But defendant does not provide any support for the implicit proposition underlying this proposed defense: That after the termination of her license to remain in premises leased by plaintiff, defendant could establish tenancy rig

2021We reject plaintiffs' contention with respect to the fourth affirmative defense and the second affirmative defense insofar as it is based on comparative negligence inasmuch as plaintiffs' own submissions raise an issue of fact whether plaintiff met his " 'duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident' " ( Brooks v Davis , 185 AD3d 1392, 1393 [4th Dept 2020]; cf. Godwin v Mancuso , 170 AD3d 1672 , 1672-1673 [4th Dept 2019]).

2015Corp., 56 NY2d 175, 184 [1982]; Silverman v Silverman, 304 AD2d 41, 46 [1st Dept 2003]); that plaintiff had misled defendant into a change of position to its detriment (Nassau Trust Co., 56 NY2d at 184 ); or that plaintiff entered into the transaction with unclean hands (National Distillers & Chem.

2015Corp., 56 NY2d 175, 184 [1982]; Silverman v Silverman, 304 AD2d 41, 46 [1st Dept 2003]); that plaintiff had misled defendant into a change of position to its detriment (Nassau Trust Co., 56 NY2d at 184 ); or that plaintiff entered into the transaction with unclean hands (National Distillers & Chem.

2015Corp., 56 NY2d 175, 184 [1982]; Silverman v Silverman, 304 AD2d 41, 46 [1st Dept 2003]); that plaintiff had misled defendant into a change of position to its detriment (Nassau Trust Co., 56 NY2d at 184 ); or that plaintiff entered into the transaction with unclean hands (National Distillers & Chem.