On November 14, 2023, justice Cohen of the New York County Commercial Division issued a decision in ARC NYWWPJV001, LLC v. WWP JV LLC, 2023 NY Slip Op. 34043(U), dismissing affirmative defenses for lack of supporting allegations, explaining:
ARC moves to strike, or dismiss, all eleven affirmative defenses asserted by WWPJV. As set forth below, ARC’s motion is granted with respect to the second, fourth, fifth, sixth, seventh, eighth, tenth, and eleventh Affirmative Defenses and denied with respect to the first, third, and ninth Affirmative Defenses.
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. However, striking affirmative defenses may be appropriate where a defendant merely pleads conclusions of law without any supporting facts.
Here, the second, fourth, fifth, sixth, seventh, eighth, tenth, and eleventh affirmative defenses fail to allege any facts or circumstances constituting a legal basis for their assertion in this action. For example, the fifth and sixth affirmative defenses respectively assert that the Complaint is barred, in whole or in part, because ARC has not sustained any cognizable damages, and that ARC’s gross negligence, willful misconduct, and bad faith breach of the LLC Agreement bar the Complaint. However, ARC’ s complaint asserts only one cause of action for a declaratory judgment declaring its rights to the reserve funds under the LLC Agreement. Thus, WWPJV fails to articulate a legal basis for the applicability of these defenses to ARC’s complaint and they are dismissed.
By contrast, the first, third, and ninth, affirmative defenses are all fact-intensive defenses supported by the allegations in the Answer with Counterclaims/Third-Party Claims. Accordingly, ARC has not met the heavy burden of showing that these defenses are without merit as a matter of law.
(Internal quotations and citations omitted).