Castillo v Nissan N. Am., Inc.

[*1] Castillo v Nissan N. Am., Inc. 2023 NY Slip Op 50445(U) Decided on April 14, 2023 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 14, 2023
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, MARINA CORA MUNDY, JJ
2022-839 K C

Jose A. Castillo, Jr., Appellant,

against

Nissan North America, Inc. and Rockaway Cars I, LLC, Doing Business as Rockaway Nissan, Respondents, and Capital One Auto Finance, Inc., A Division of Capital One N.A., Defendant.

Jose A. Castillo, Jr., appellant pro se. Cyruli, Shanks, Hart & Zizmor, LLP, for respondents (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Rupert V. Barry, J.), entered July 22, 2022. The order denied plaintiff's motion to strike the second through eleventh affirmative defenses set forth in the answer interposed by defendants Nissan North America, Inc. and Rockaway Cars I, LLC.

ORDERED that the order is affirmed, without costs.

Plaintiff commenced this action against defendants alleging, among other things, that they engaged in deceptive, fraudulent, and illegal business practices relating to sales of automobiles to New York State customers. Defendants Nissan North America, Inc. and Rockaway Cars I, LLC (defendants) served a joint answer denying the allegations and asserting 11 affirmative defenses, the first one being failure to state a cause of action.

Plaintiff thereafter moved to dismiss affirmative defenses 2 through 11, arguing that, contrary to the requirements of CPLR 3013 and 3018 (b), those defenses are merely "conclusions of law without any supporting facts." In opposition to the motion, defendants' counsel argued that the affirmative defenses were sufficient since they provided notice and are self-explanatory.

In an order entered July 22, 2022, the Civil Court denied plaintiff's motion, stating that the "affirmative defenses are adequate to survive a motion to strike them from an answer at the petition/answer stage of a proceeding."

CPLR 3211 (b) provides that "a party may move for judgment dismissing one or more defenses on the ground that a defense is not stated or has no merit." The standard of review on a motion to dismiss an affirmative defense pursuant to CPLR 3211 (b) is akin to that applied under CPLR 3211 (a) (7), i.e., whether there is any legal or factual basis for the assertion of the defense (see In re Liquidation of Ideal Mut. Ins. Co., 140 AD2d 62 [1988]). The allegations set forth in [*2]the answer must be liberally construed and viewed in the light most favorable to the defendant, who is entitled to the benefit of every reasonable inference (see 182 Fifth Ave. v Design Dev. Concepts, 300 AD2d 198 [2002]). However, "[a]llegations consisting of bare legal conclusions . . . are not presumed to be true and accorded every favorable inference" (Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1999]).

Here, under the particular circumstances presented, the Civil Court did not err in denying plaintiff's motion in its entirety (see Scholastic Inc. v Pace Plumbing Corp., 129 AD3d 75 [2015]; Seiler v Ricci's Towing Servs., 210 AD2d 972 ]1994[; but see Commissioners of the State Ins. Fund v Ramos, 63 AD3d 453 [2009]; Robbins v Growney, 229 AD2d 356 [1996]; Kachalsky v Nesheiwat, 55 Misc 3d 130[A], 2017 NY Slip Op 50404[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]). The Civil Court's order denying the motion at the "petition/answer stage" was, in effect, without prejudice to plaintiff renewing its dismissal motion at a later stage (see Seiler v Ricci's Towing Servs., 210 AD2d 972).

Accordingly, the order is affirmed.

TOUSSAINT, P.J., BUGGS and MUNDY, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 14, 2023