Boilerplate Affirmative Defenses are Subject to Dismissal

On June 4, 2014, Justice Demarest of the Kings County Commercial Division issued a decision in Amazon Properties US, LLC v. Park Avenue Bank, 2014 NY Slip Op. 50862(U), dismissing boilerplate affirmative defenses.

In Amazon Properties, the plaintiff sued for "breach of contract, breach of the implied covenant of good faith and fair dealing, interference with a contractual relationship, and conversion" and subsequently moved for partial summary judgment and to dismiss the defendant's affirmative defenses. The decision in Amazon Properties addresses several topics; this post looks at only one: the court's decision to strike most of the defendant's affirmative defenses. The court explained:

Defendants have listed fourteen boilerplate affirmative defenses, the majority of which are conclusory and fail to plead any supporting facts. Conclusory affirmative defenses that merely plead conclusions of law without any supporting facts are properly dismissed.

(Internal quotations and citations omitted) (emphasis added).

Because of the importance of preserving them in the answer, it is common practice to recite any affirmative defenses in an answer that are colorable. It is less common to plead the facts supporting those defenses. As this decision shows, affirmative defenses without a factual predicate are subject to dismissal.