Thursday, June 9, 2011

New York judge bench-slaps defendant for shotgun approach to pleading affirmative defenses

Throwing 20 affirmative defenses against the wall to see what sticks is a strategy that did not go over well with Manhattan Civil Court Judge Arthur F. Engoron in a landlord-tenant dispute over back rent.  The case is Cityspire Inc. v. Gotham Lasik PLLC, 092462/10 and here's what the judge said in his order granting summary judgement to the plaintiff-landlord regarding the defendant's pleading practice:

The [affirmative defenses] are a veritable laundry list, something of a 'greatest hits,' of what respondents tend to argue: the predicate notices are not self-authenticating; petitioner accepted a rent payment after serving a notice to cure; the amounts of money set forth in the predicate notices are inconsistent with the amounts set forth in the petition; the subject lease provision sets forth a condition subsequent rather than a conditional limitation; the premises are inaccurately described; the verification is improper; the mailings were improper; etc.. . . . In other words, we have the usual suspects, with, naturally, a few vague counterclaims thrown in for good measure.

Author Mary McCarthy famously said of the playwright Lillian Hellman, 'every word she writes is a lie, including "and" and "the." Here, there are no lies; but every argument respondent makes is unavailing, because of a mistake of fact or a misconstruction of law.

Hat tip to the New York Law Journal.


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