third affirmative defense in New York

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.,

2012The Weiss defendants failed to establish their prima facie entitlement to judgment as a matter of law based on so much of the third affirmative defense as alleged adverse possession (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

2012The Weiss defendants failed to establish their prima facie entitlement to judgment as a matter of law based on so much of the third affirmative defense as alleged adverse possession (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

2012The Weiss defendants failed to establish their prima facie entitlement to judgment as a matter of law based on so much of the third affirmative defense as alleged adverse possession (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

2012The Weiss defendants failed to establish their prima facie entitlement to judgment as a matter of law based on so much of the third affirmative defense as alleged adverse possession (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; 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.,

2025Consequently, petitioner has not met its burden to show these defenses lack merit as a matter of law. ( see Gonzalez v Wingate at Beacon , 137 AD3d 747, 747 [2nd Dept. 2016]).

2025Consequently, petitioner has not met its burden to show these defenses lack merit as a matter of law. ( see Gonzalez v Wingate at Beacon , 137 AD3d 747, 747 [2nd Dept. 2016]).

2025The third affirmative defense, failure to state a cause of action, must also survive. ( see Ochoa V Townsend , 209 AD3d 867 , 868 [2nd Dept. 2022] ("[N]o motion by the plaintiff lies under CPLR 3211(b) to strike the defense [of failure to state a cause of action], as this amounts to an endeavor by the plaintiff to test the sufficiency of his or her own claim.") [citations omitted]; see also Jacob Marion, LLC v Jones , 168 AD3d 1043 , 1044 [2nd Dept. 2019]).

2025The third affirmative defense, failure to state a cause of action, must also survive. ( see Ochoa V Townsend , 209 AD3d 867 , 868 [2nd Dept. 2022] ("[N]o motion by the plaintiff lies under CPLR 3211(b) to strike the defense [of failure to state a cause of action], as this amounts to an endeavor by the plaintiff to test the sufficiency of his or her own claim.") [citations omitted]; see also Jacob Marion, LLC v Jones , 168 AD3d 1043 , 1044 [2nd Dept. 2019]).

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]).

2022However, the third affirmative defense, that plaintiff was not wearing a seat belt, should be dismissed, since plaintiff testified that she was wearing a seat belt and defendants offered no evidence to the contrary ( see Stickney v Alleca , 52 AD3d 1214, 1215 [4th Dept 2008]).

2022However, the third affirmative defense, that plaintiff was not wearing a seat belt, should be dismissed, since plaintiff testified that she was wearing a seat belt and defendants offered no evidence to the contrary ( see Stickney v Alleca , 52 AD3d 1214, 1215 [4th Dept 2008]).

2017Treating that representation as true — and noting the impropriety of plaintiffs’ efforts to call it into question with new proof in their reply papers — we cannot say that the third affirmative defense lacks merit (see Kevin Kerveng Tung, P.C. v JP Morgan Chase & Co., 105 AD3d 709, 710 [2013], lv dismissed 22 NY3d 949 [2013]; Matter of Kushaqua Estates v Bonded Concrete, 215 AD2d 993, 994 [1995]).

2017Treating that representation as true — and noting the impropriety of plaintiffs’ efforts to call it into question with new proof in their reply papers — we cannot say that the third affirmative defense lacks merit (see Kevin Kerveng Tung, P.C. v JP Morgan Chase & Co., 105 AD3d 709, 710 [2013], lv dismissed 22 NY3d 949 [2013]; Matter of Kushaqua Estates v Bonded Concrete, 215 AD2d 993, 994 [1995]).

2017Treating that representation as true — and noting the impropriety of plaintiffs’ efforts to call it into question with new proof in their reply papers — we cannot say that the third affirmative defense lacks merit (see Kevin Kerveng Tung, P.C. v JP Morgan Chase & Co., 105 AD3d 709, 710 [2013], lv dismissed 22 NY3d 949 [2013]; Matter of Kushaqua Estates v Bonded Concrete, 215 AD2d 993, 994 [1995]).

2017Treating that representation as true — and noting the impropriety of plaintiffs’ efforts to call it into question with new proof in their reply papers — we cannot say that the third affirmative defense lacks merit (see Kevin Kerveng Tung, P.C. v JP Morgan Chase & Co., 105 AD3d 709, 710 [2013], lv dismissed 22 NY3d 949 [2013]; Matter of Kushaqua Estates v Bonded Concrete, 215 AD2d 993, 994 [1995]).

2017Co. LLC, 138 AD3d 1228, 1229 [2016]).

2017Co. LLC, 138 AD3d 1228, 1229 [2016]).

2013In a mortgage foreclosure action, “[a] plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced” (HSBC Bank USA v Hernandez, 92 AD3d 843, 843 [2012]; see U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753 [2009]; Countrywide Home Loans, Inc. v Gress, 68 AD3d 709, 709 [2009]).

2013In a mortgage foreclosure action, “[a] plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced” (HSBC Bank USA v Hernandez, 92 AD3d 843, 843 [2012]; see U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753 [2009]; Countrywide Home Loans, Inc. v Gress, 68 AD3d 709, 709 [2009]).

2013In a mortgage foreclosure action, “[a] plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced” (HSBC Bank USA v Hernandez, 92 AD3d 843, 843 [2012]; see U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753 [2009]; Countrywide Home Loans, Inc. v Gress, 68 AD3d 709, 709 [2009]).

2013In a mortgage foreclosure action, “[a] plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced” (HSBC Bank USA v Hernandez, 92 AD3d 843, 843 [2012]; see U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753 [2009]; Countrywide Home Loans, Inc. v Gress, 68 AD3d 709, 709 [2009]).

2013In a mortgage foreclosure action, “[a] plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced” (HSBC Bank USA v Hernandez, 92 AD3d 843, 843 [2012]; see U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753 [2009]; Countrywide Home Loans, Inc. v Gress, 68 AD3d 709, 709 [2009]).

2013In a mortgage foreclosure action, “[a] plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced” (HSBC Bank USA v Hernandez, 92 AD3d 843, 843 [2012]; see U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753 [2009]; Countrywide Home Loans, Inc. v Gress, 68 AD3d 709, 709 [2009]).

2012The Supreme Court properly denied that branch of the plaintiffs motion which was to dismiss the third affirmative defense, alleging failure to state a cause of action. “[N]o motion by the plaintiff lies under CPLR 3211 (b) to strike the defense [of failure to state a cause of action], as this amounts to an endeavor by the plaintiff to test the sufficiency of his or her own claim” (Butler v Catinella, 58 AD3d 145, 150 [2008]; see CPLR 3211 [a] [7]).

2012The Supreme Court properly denied that branch of the plaintiffs motion which was to dismiss the third affirmative defense, alleging failure to state a cause of action. “[N]o motion by the plaintiff lies under CPLR 3211 (b) to strike the defense [of failure to state a cause of action], as this amounts to an endeavor by the plaintiff to test the sufficiency of his or her own claim” (Butler v Catinella, 58 AD3d 145, 150 [2008]; see CPLR 3211 [a] [7]).

2012“Actual possession adverse to the true owner for the statutory period is required before title will vest” by adverse possession (Brand v Prince, 35 NY2d 634, 636 [1974]; see Estate of Becker v Murtagh, 19 NY3d 75 [2012]; see Hogan v Kelly, 86 AD3d 590, 591 [2011]). “[T]here must be possession in fact of a type that would give the owner a cause of action in ejectment against the occupier throughout the prescriptive period” (Brand v Prince, 35 NY2d at 636 ; see Estate of Becker v Murtagh, 19 NY3d 75 [2012]; Ram v Dann, 84 AD3d 1204, 1206 [2011]).

2012“Actual possession adverse to the true owner for the statutory period is required before title will vest” by adverse possession (Brand v Prince, 35 NY2d 634, 636 [1974]; see Estate of Becker v Murtagh, 19 NY3d 75 [2012]; see Hogan v Kelly, 86 AD3d 590, 591 [2011]). “[T]here must be possession in fact of a type that would give the owner a cause of action in ejectment against the occupier throughout the prescriptive period” (Brand v Prince, 35 NY2d at 636 ; see Estate of Becker v Murtagh, 19 NY3d 75 [2012]; Ram v Dann, 84 AD3d 1204, 1206 [2011]).

2012“Actual possession adverse to the true owner for the statutory period is required before title will vest” by adverse possession (Brand v Prince, 35 NY2d 634, 636 [1974]; see Estate of Becker v Murtagh, 19 NY3d 75 [2012]; see Hogan v Kelly, 86 AD3d 590, 591 [2011]). “[T]here must be possession in fact of a type that would give the owner a cause of action in ejectment against the occupier throughout the prescriptive period” (Brand v Prince, 35 NY2d at 636 ; see Estate of Becker v Murtagh, 19 NY3d 75 [2012]; Ram v Dann, 84 AD3d 1204, 1206 [2011]).

2012“Actual possession adverse to the true owner for the statutory period is required before title will vest” by adverse possession (Brand v Prince, 35 NY2d 634, 636 [1974]; see Estate of Becker v Murtagh, 19 NY3d 75 [2012]; see Hogan v Kelly, 86 AD3d 590, 591 [2011]). “[T]here must be possession in fact of a type that would give the owner a cause of action in ejectment against the occupier throughout the prescriptive period” (Brand v Prince, 35 NY2d at 636 ; see Estate of Becker v Murtagh, 19 NY3d 75 [2012]; Ram v Dann, 84 AD3d 1204, 1206 [2011]).

2012The stipulation precluded the assertion of any claim of adverse possession (see Russo Realty Corp. v Orlando, 30 AD3d 499, 501 [2006]).

2012The stipulation precluded the assertion of any claim of adverse possession (see Russo Realty Corp. v Orlando, 30 AD3d 499, 501 [2006]).

2012“Actual possession adverse to the true owner for the statutory period is required before title will vest” by adverse possession (Brand v Prince, 35 NY2d 634, 636 [1974]; see Estate of Becker v Murtagh, 19 NY3d 75 [2012]; see Hogan v Kelly, 86 AD3d 590, 591 [2011]). “[T]here must be possession in fact of a type that would give the owner a cause of action in ejectment against the occupier throughout the prescriptive period” (Brand v Prince, 35 NY2d at 636 ; see Estate of Becker v Murtagh, 19 NY3d 75 [2012]; Ram v Dann, 84 AD3d 1204, 1206 [2011]).

2012“Actual possession adverse to the true owner for the statutory period is required before title will vest” by adverse possession (Brand v Prince, 35 NY2d 634, 636 [1974]; see Estate of Becker v Murtagh, 19 NY3d 75 [2012]; see Hogan v Kelly, 86 AD3d 590, 591 [2011]). “[T]here must be possession in fact of a type that would give the owner a cause of action in ejectment against the occupier throughout the prescriptive period” (Brand v Prince, 35 NY2d at 636 ; see Estate of Becker v Murtagh, 19 NY3d 75 [2012]; Ram v Dann, 84 AD3d 1204, 1206 [2011]).

2012“Actual possession adverse to the true owner for the statutory period is required before title will vest” by adverse possession (Brand v Prince, 35 NY2d 634, 636 [1974]; see Estate of Becker v Murtagh, 19 NY3d 75 [2012]; see Hogan v Kelly, 86 AD3d 590, 591 [2011]). “[T]here must be possession in fact of a type that would give the owner a cause of action in ejectment against the occupier throughout the prescriptive period” (Brand v Prince, 35 NY2d at 636 ; see Estate of Becker v Murtagh, 19 NY3d 75 [2012]; Ram v Dann, 84 AD3d 1204, 1206 [2011]).

2012“Actual possession adverse to the true owner for the statutory period is required before title will vest” by adverse possession (Brand v Prince, 35 NY2d 634, 636 [1974]; see Estate of Becker v Murtagh, 19 NY3d 75 [2012]; see Hogan v Kelly, 86 AD3d 590, 591 [2011]). “[T]here must be possession in fact of a type that would give the owner a cause of action in ejectment against the occupier throughout the prescriptive period” (Brand v Prince, 35 NY2d at 636 ; see Estate of Becker v Murtagh, 19 NY3d 75 [2012]; Ram v Dann, 84 AD3d 1204, 1206 [2011]).

2012“A surrender by operation of law occurs when the parties to a lease both do some act so inconsistent with the landlord-tenant relationship that it indicates their intent to deem the lease terminated” (Riverside Research Inst. v KMGA, Inc., 68 NY2d 689, 691-692 [1986]; see Ford Coyle Props., Inc. v 3029 Ave.

2012“A surrender by operation of law occurs when the parties to a lease both do some act so inconsistent with the landlord-tenant relationship that it indicates their intent to deem the lease terminated” (Riverside Research Inst. v KMGA, Inc., 68 NY2d 689, 691-692 [1986]; see Ford Coyle Props., Inc. v 3029 Ave.

2026The plaintiffs established their prima facie entitlement to judgment as a matter of law dismissing that affirmative defense through the submission of evidence demonstrating that they engaged in diligent efforts to mitigate damages, including by promptly reporting the oil spill and undertaking professional remediation ( see Angotti v Petro Home Servs. , 240 AD3d at 734; Eskenazi v Mackoul , 72 AD3d 1012, 1014).

2026The plaintiffs established their prima facie entitlement to judgment as a matter of law dismissing that affirmative defense through the submission of evidence demonstrating that they engaged in diligent efforts to mitigate damages, including by promptly reporting the oil spill and undertaking professional remediation ( see Angotti v Petro Home Servs. , 240 AD3d at 734; Eskenazi v Mackoul , 72 AD3d 1012, 1014 ).

2023A plaintiff establishes its prima facie entitlement to judgment as a matter of law in a foreclosure action by providing evidence of the note and mortgage and proof of defendant's default ( see Bank of Am., N.A. v Brannon , 156 AD3d 1, 6 [1st Dept 2017]).