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Supreme Court, Albany CountyMar 11, 1987
134 Misc. 2d 998 (N.Y. Misc. 1987)
134 Misc. 2d 998513 N.Y.S.2d 924

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March 11, 1987

Ackerman, Wachs Finton, P.C. (F. Stanton Ackerman of counsel), for plaintiff.

Kohn, Bookstein Karp, P.C. (Lorraine I. Remo of counsel), for defendant.

In this matrimonial action, the first affirmative defense is that the complaint fails to state a cause of action. The plaintiff has moved to strike the affirmative defense.

Defendant opposed the motion citing the decision of the Appellate Division, First Department, in Riland v Todman Co. ( 56 A.D.2d 350). The court has tested that decision and found there is conflict between the Appellate Division, First Department, and Appellate Division, Second Department.

The Appellate Division, Second Department, holds that the defense that a claim fails to state a cause of action may not be interposed in an answer (Glenesk v Guidance Realty Corp., 36 A.D.2d 852; Bazinet v Lorenz, 70 A.D.2d 582; Konow v Sugarman, 71 A.D.2d 1016).

The Appellate Division, Third Department, has also spoken. In Wheeler v Stevensville Hotel Country Club ( 103 A.D.2d 945), the Appellate Division, Third Department, seems to lean toward the Appellate Division, First Department's position in Riland, (supra), if the defendant, in opposing papers, indicates in what respect the defense has merit. Here, the defendant has not done so.

In this case, the court will follow the Appellate Division, Second Department. It should be noted also that Presiding Justice Mahoney of the Appellate Division, Third Department, in his dissenting opinion in Di Prospero v Ford Motor Co. ( 87 A.D.2d 697) cites as authority the Appellate Division, Second Department's decision in Bazinet v Lorenz ( 70 A.D.2d 582, supra.)