144 Misc. 2d 430 | N.Y. City Civ. Ct. | 1989
OPINION OF THE COURT
Motion by plaintiff for an order, pursuant to CPLR 3211 (b), dismissing the affirmative defenses in the answer is granted only as to defendants Norman e Breitstein and Heitner & Breitstein, a general partnership.
Although the court had previously directed a traverse on the jurisdictional defense, a hearing is unnecessary since it
Review of the record on the motion also establishes that the remaining affirmative defenses, namely, (1) payment; (2) plaintiff is not authorized to do business in the State; and (3) plaintiff has named the wrong party defendant, all lack merit. The only opposition offered is the affirmation of Herbert Heitner, which, notwithstanding that it should have been in the form of an affidavit, not an affirmation (CPLR 2106), fails to raise a genuine triable issue. First, no proof has been offered to establish that the claim was paid. The general denial and statement that "justified bills” have been paid are insufficient for that purpose. Secondly, the submission of a certificate from the Secretary of State attests to plaintiff’s authority to do business in the State, sufficient to show that the second affirmative defense is without basis. Equally merit-less is the third defense that a wrong party defendant has been named in the action. There is no claim by the individuals that they are not general partners of defendant law firm.
Thus, each of the affirmative defenses is without merit and, plainly, should not have been interposed in the answer. Accordingly, the affirmative defenses are stricken. Bearing in mind defendants’ status as a law firm, with a degree of expertise expected of those in the practice of law, in my view, it was clearly frivolous on defendants’ part to inject these issues into the litigation. That action necessitated this motion, which required four court appearances and consideration of the issue by two Judges of this court, in addition to the expenditure of time by court personnel in terms of record keeping and scheduling the several adjournments of the motion. As a result, it is concluded that imposition of costs is warranted here as a remedy for defendants’ frivolous conduct.