Riland v. Frederick S. Todman & Co.
New York Supreme Court, Appellate Division
56 A.D.2d 350, 393 N.Y.S.2d 4 (1977)
- Written by Steven Pacht, JD
Facts
W. Kenneth Riland (plaintiff) sued accounting firm Frederick S. Todman & Company and the firm’s members (collectively, Todman) (defendants) for breach of fiduciary duty, fraud and deceit, and professional malpractice. In its answer, Todman generally denied Riland’s allegations and pleaded as an affirmative defense that Riland’s complaint failed to state a cause of action. Riland moved to strike Todman’s failure-to-state-a-cause-of-action affirmative defense. The supreme court denied Riland’s motion, ruling that Todman was entitled to assert affirmative defenses addressed to Riland’s pleading and potential proof. Riland appealed, arguing that by pleading the asserted failure to state a claim as an affirmative defense, Todman elected to test the sufficiency of Riland’s complaint, which required the supreme court to examine the complaint and review the record to determine before trial whether the complaint was sufficient. Riland further contended that his complaint adequately pleaded his three causes of action and that the supreme court thus should have stricken Todman’s affirmative defense.
Rule of Law
Issue
Holding and Reasoning (Birns, J.)
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