On May 14, 2026, Justice Boddie of the Kings County Commercial Division issued a decision in Avion Funding v. Access Prods. Inc., 2026 NY Slip Op. 32048(U), holding that a plaintiff may not move to dismiss an affirmative defense of failure to state a claim, explaining:
CPLR 321 l(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. When moving to dismiss, the plaintiff bears the burden of demonstrating that the affirmative defenses are without merit as a matter of law because they either do not apply under the factual circumstances of the case, or fail to state a defense. Where affirmative defenses merely plead conclusions of law without any supporting facts, the affirmative defenses should be dismissed pursuant to CPLR 3211(b).
. . .
[T]he branch of plaintiff’s motion seeking dismissal of defendant’s first affirmative defense is denied. No motion by the plaintiff lies under CPLR 3211(b) to strike the defense of failure to state a cause of action, as this amounts to an endeavor by the plaintiff to test the sufficiency of his or her own claim.
(Internal citations omitted).