Opinion
Index 650264/2021
04-04-2022
DICKON TONG, Plaintiff, v. JEFFREY GRANAT, KATHRYN MCCLAIN, and RONALD MCCLAIN, Defendants.
Unpublished Opinion
MOTION DATE 04/21/2021
MOTION SEQ. NO. 001
DECISION + ORDER ON MOTION
HON. LOUIS L. NOCK, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, and 47 were read on this motion to DISMISS.
Upon the foregoing documents, it is hereby ordered that defendants' motion to dismiss the complaint pursuant to CPLR 3211 is denied, and plaintiffs cross motion to compel disclosure pursuant to CPLR 3124 and 3126 is denied, based upon the following memorandum decision.
In this action for breach of an apartment lease, the parties dispute whether the lease was renewed prior to the expiration of the lease term on June 30, 2020, and, consequently, whether defendants Jeffrey Granat and Kathryn McClain, residents of the apartment, and defendant Ronald McClain, the guarantor of the lease, are liable for an additional year of rent payments to the landlord, plaintiff Dickon Tong. Plaintiff commenced this action by filing the summons and complaint on January 13, 2021 (NYSCEF Doc. No. 1). Defendants appeared and answered the complaint and asserted several counterclaims on February 18, 2021 (NYSCEF Doc. No. 2). Plaintiff replied to the counterclaims, and issue was completely joined between the parties, on March 10, 2021 (NYSCEF Doc. No. 15).
Defendants, despite having already answered the complaint, now make the instant motion to dismiss pursuant to CPLR 3211 "as the Defendants deny all charges alleged in the complaint and can prove that the Plaintiffs lawsuit is frivolous and sanctionable" (NYSCEF Doc. No. 17). A motion under CPLR 3211 is made "at any time before service of the responsive pleading is required," unless the motion is based on failure to state a cause of action, lack of subject matter jurisdiction, or failure to join a necessary party (CPLR 321 l[e]). Here, defendants' notice of motion fails to identify any statutory ground in support of the motion. To the extent one is set forth anywhere in the papers, it is documentary evidence pursuant to CPLR 3211(a)(1). The statute provides that such a defense is waived if not raised in a motion prior to answering the complaint, or in the answer itself (CPLR 3211 [e]). Defendants did not assert a defense based on documentary evidence as an affirmative defense in their answer. Accordingly, to the extent this motion is based on a documentary evidence defense, it must be denied as defendants have waived this defense (Hendricksonv Philbor Motors, Inc., 102 A.D.3d 251, 257 [2d Dept 2012]). Defendants' claimed denial of liability is also insufficient; defendants' argument challenges the facts alleged in the complaint, implicating matters that cannot be resolved on a motion to dismiss (Genger v Genger, 87A.D.3d871, 873[lst Dept 2011]).
In their reply papers, defendants ask for leave to amend their answer pursuant CPLR 3025(b) to add the affirmative defenses of documentary evidence and waiver, estoppel, and laches, asserting that these defenses were inadvertently omitted from the answer due to law office failure. While leave to amend is typically freely given (CPLR 3025[b]), leave should not be given where the proposed amendment would be futile (Silverstein v Pillersdorf, 199 A.D.3d 539 [1st Dept 2021]). As with documentary evidence, the defenses of waiver, laches, and estoppel are also waived if not raised in a pre-answer motion or in a responsive pleading (Hanover Ins. Co. v Finnerty, 225 A.D.2d 1054, 1054 [4th Dept 1996] ["defendant's post-answer motion to dismiss based upon the defenses of waiver, release and Statute of Limitations was untimely"]; Peoples Commercial Bank v Jerry Greene Distrib., Inc., 149 A.D.2d 774, 775 [3d Dept 1989] [holding that laches must be raised by pre-answer motion or in the responsive pleading]). Waived defenses may only be asserted in an amended answer where there will be no prejudice or surprise resulting from the delay in asserting them, and they are not "palpably insufficient or patently devoid of merit" (Deutsche Bank Trust Co. Ams. v Cox, 110 A.D.3d 760 [2d Dept 2013]). Here, defendants' affirmative defenses are both pled in an entirely conclusory manner without any supporting facts. "[B]are legal conclusions are insufficient to raise an affirmative defense" (Robbins v Growney, 229 A.D.2d 356, 358 [1st Dept 1996]). Additionally, as this is an action at law for damages, equitable defenses such as laches are unavailable (Cadlerock, L.L.C. v Renner, 72 A.D.3d 454 [1st Dept 2010]).
Finally, plaintiffs cross-move to compel production of outstanding interrogatory responses pursuant to CPLR 3124 and 3216. In opposition to the cross motion, defendants attached their response to the interrogatories. Plaintiff now claims that the responses are insufficient but does not dispute that defendants have responded. Sanctions or other relief as provided in CPLR 3126 are not appropriate herein as defendants have not behaved contumaciously and have responded to plaintiffs demand, even if potentially incompletely (Double Fortune Prop. Inv'rs Corp. v Gordon, 55 A.D.3d 406, 407 ). The parties will appear for a conference to determine whether further compliance with plaintiffs interrogatories need be ordered.
Accordingly, it is hereby
ORDERED that the motion and cross-motion are denied; and it is further ORDERED that the parties shall appear for a virtual status conference via Microsoft Teams on April 27, 2022 at 2:00 PM.
This constitutes the Decision and Order of the court.