Practice point: The Appellate Division stated the the motion court was not free to dismiss the affirmative defense of failure to state a claim, as failure to state a claim may be raised at any time, even if not pleaded, pursuant to CPLR 3211[e], and, therefore, is mere surplusage as an affirmative defense.
Case: San-Dar Assoc. v. Fried, NY Slip Op 04884 (1st Dep't June 15, 2017)
Here is the decision.
Monday's issue: A non-resident's consent to jurisdiction.
