## Facts

- The plaintiff sued an accounting firm and its partners alleging breach of fiduciary duty, fraud and deceit, and professional malpractice/negligence.
- The defendants answered with a general denial and asserted, as a first affirmative defense, that the complaint failed to state a cause of action.
- The plaintiff moved to strike that first affirmative defense as improper.
- The trial court denied the motion to strike.
- The plaintiff appealed, limiting the appeal to whether the “failure to state a cause of action” defense may be pleaded as an affirmative defense under the CPLR.

## Issues

1. Whether a defendant may plead “failure to state a cause of action” as an affirmative defense in an answer under the CPLR.
2. Whether such a pleaded defense must be stricken as improper, redundant, or a mere legal conclusion.

## Decision

- The Appellate Division affirmed the order denying the motion to strike.
- The court held that, under CPLR practice, the defense that a complaint fails to state a cause of action may appear in the answer.
- Although pleading the defense is unnecessary because it is preserved without being pleaded, it is not improper and need not be stricken.
- Pleading the defense does not require an immediate, pretrial judicial determination of the complaint’s sufficiency.

## Legal Principles

- CPLR 3211(a)(7) expressly recognizes failure to state a cause of action as a basis for dismissal.
- The CPLR treats the defense as nonwaivable; it is preserved even if not raised by pre-answer motion or stated in the answer.
- The historic prohibition (under prior practice) against asserting the defense by answer does not control under the CPLR.
- Inclusion of the defense in an answer may function as notice of an intended sufficiency challenge and is not, by itself, prejudicial or strikeable.

## Conclusion

The court upheld a defendant’s right under the CPLR to plead “failure to state a cause of action” in an answer and refused to strike the defense, reasoning that the defense is statutorily recognized and preserved regardless of pleading, making its inclusion surplusage but permissible.


Riland v. Frederick S. Todman & Co., 56 A.D.2d 350, 393 N.Y.S.2d 4 (N.Y. App. Div. 1977)