We therefore do not necessarily agree with respondents' characterization of Matter of Boehner as the "controlling law" in this case. That said, respondents are "entitled to the benefit of every reasonable intendment of the pleading" (Pugh v New York City Hous. Auth., 159 A.D.3d 643, 643 [1st Dept 2018] [internal quotation marks and citation omitted]), and they urge that their affirmative defense was intended to present to Surrogate's Court an equitable distribution scheme that would be in line with decedent's intent. Considering the liberal standard to be applied on this cross-motion (see CPLR 3025 [b]), we discern no abuse of discretion by Surrogate's Court in permitting this defense to be added.
Nevertheless, on landlord's CPLR 3211(b) motion, the allegations set forth in the answer must be viewed in the light most favorable to the respondent and the respondent is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed (see Pugh v New York City Hous. Auth., 159 A.D.3d 643 [2018]). Here, the second objection in point of law/affirmative while inartfully drafted in his answer, also clearly claimed that respondent is entitled to succession rights to the apartment following Sprague's vacatur.
"When moving to dismiss an affirmative defense pursuant to CPLR 3211(b), the plaintiff bears the heavy burden of showing that the defense is without merit as a matter of law (Alpha Capital Anstalt v General Biotechnology Corp., 191 A.D.3d 515, 515 [1st Dept 2021])." "The allegations in the answer must be viewed in the light most favorable to the defendant (id.), and the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed" (Pugh v New York City Hous. Auth., 159 A.D.3d 643, 643 [1st Dept 2018]). Secured's first affirmative defense to plaintiff's complaint, equitable subrogation, asserts: "[P]laintiff cannot demonstrate... that Defendant could have had actual or constructive notice of the facts alleged by Plaintiff. And as such Defendant's lien takes priority over Plaintiff's."
The motion is governed by CPLR 3211 (b), which authorizes a party to make a motion to dismiss on the ground that "a defense is not stated or has no merit" (see Siegel, NY Prac § 269 [6th ed, 2020 Update]). Claimant, as the party seeking dismissal of the affirmative defenses (see CPLR 3018 [b]), "bore the heavy burden of demonstrating that the defenses lacked merit as a matter of law" (DeThomasis v Viviano, 148 AD3d 1338, 1339 [2017]; see CPLR 3211 [b]; New York Univ. v Continental Ins. Co., 87 NY2d 308, 323 [1995]; Pugh v New York City Hous. Auth., 159 AD3d 643, 643 [2018]; Van Wert v Randall, 100 AD3d 1079, 1081 [2012]). In reviewing claimant's dismissal motion, "we liberally construe the pleadings, accept the facts alleged by defendant [in the affirmative defenses] as true and afford [defendant] the benefit of every reasonable inference" (DeThomasis v Viviano, 148 AD3d at 1339; see CPLR 3026; Bank of N.Y. v Penalver, 125 AD3d 796, 797 [2015]; see also Faison v Lewis, 25 NY3d 220, 224 [2015]).
"On such a motion, the allegations set forth in the answer must be viewed in the light most favorable to the defendants and 'the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed'." (Pugh v New York City Hous. Auth., 159 A.D.3d 643, 643 [1st Dept. 2018] [internal citations omitted]; West 115 11-13 Assocs. LLC v Pierre, 2023 NY Slip Op 31069(U), *7 [Civ Ct, New York County 2023] [internal citation omitted]).
"On such a motion, the allegations set forth in the answer must be viewed in the light most favorable to the defendants and 'the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed'." (Pugh v New York City Hous. Auth., 159 A.D.3d 643, 643, 74 N.Y.S.3d 522 [1st Dept 2018] [internal citations omitted]; West 115 11-13 Assocs. LLC v Pierre, 2023 NY Slip Op 31069(U), *7 [Civ Ct, New York County 2023] [internal citation omitted]).
On a motion to strike affirmative defenses, "the allegations set forth in the answer must be viewed in a light most favorable to the defendants, and the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed" (Pugh v New York City Housing Authority, 159 A.D.3d 643, 643 [1st Dept 2018] [internal citations omitted]). However, striking affirmative defenses may be appropriate where a defendant "merely plead[s] conclusions of law without any supporting facts" (Fireman's Fund Ins. Co. v Farell, 57 A.D.3d 721, 723 [2d Dept 2008]; see also Kronish Lieb Weiner &Hellman LLP v Tahari, Ltd., 35 A.D.3d 317, 319 [1st Dept 2006] [affirming dismissal of affirmative defenses as conclusory]).
A "plaintiff bears the heavy burden of showing that [an affirmative] defense is without merit as a matter of law" when moving to dismiss pursuant to CPLR 3211(b) (Emigrant Bank v Rosabianca, 210 A.D.3d 527 [1st Dept 2022] [internal citations and quotation marks omitted]). "The allegations in the answer must be viewed in the light most favorable to the defendant . . . and the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed" (id., citing Pugh v New York City Hous. Auth., 159 A.D.3d 643 [1st Dept 2018]). DaSilva's second affirmative defense is dismissed.
A defense should not be stricken where there are questions of fact requiring trial" (534 E. 11th St. Hous. Dev. Fund Corp. v Hendrick, 90 AD3d 541, 542 [1st Dept 2011] [citations omitted]). Plaintiff bears the "heavy burden of showing that the defense is without merit as a matter of law" (Pugh v New York City Hous. Auth., 159 AD3d 643, 643 [1st Dept 2018] [internal quotation marks and citations omitted]).
Upon plaintiffs' motion to dismiss affirmative defenses, however, it is not defendants' burden to establish their defenses by admissible evidence, but plaintiffs' burden to establish that the defenses are legally inapplicable. Pugh v. New York City Hous. Auth. , 159 AD3d 643, 643 (1st Dep't 2018) ; Granite State Ins. Co. v. Transatlantic Reins. Co. , 132 AD3d 479, 481 (1st Dep't 2015) ; Calpo-Rivera v. Siroka , 144 AD3d 568, 568 (1st Dep't 2016) ; 534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick , 90 AD3d 541, 542 (1st Dep't 2011).