On April 6, 2024, Justice Masley of the New York County Commercial Division issued a decision in Zurich Am. Ins. Co. v. Providence Capital LLC, 2024 NY Slip Op. 31202(U), holding that a motion to dismiss a defense can be made on any ground, not just those listed in CPLR 3211(a), explaining:
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 movant bears the heavy burden of showing that the defense is without merit as a matter of law. The court should apply the same standard it applies to a motion to dismiss pursuant to CPLR 3211(a)(7), and the factual assertions of the defense will be accepted as true. The court should not dismiss a defense where there remain questions of fact requiring a trial. However, unlike
(Internal quotations and citations omitted).
subdivision (a), which enumerates grounds on which a cause of action may be dismissed, there are no listed grounds on which a defense may be attacked. Any defense may be attacked on any ground, and there is no requirement that the court elect to treat the CPLR 3211(b) motion as one for summary judgment under CPLR 3211(c) before the court can consider affidavits.