United States District Court, S.D. New York
June 22, 2004.
HOWARD LEVINE, Plaintiff,
COLUMBIA LABORATORIES, INC., Defendant.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
This matter is before the Court on defendant's motion to
dismiss Count III of the complaint, which asserts a claim for
breach of a letter agreement dated March 4, 1993.
The motion to dismiss Count III is based on a release contained
in plaintiff's Separation and Consulting Agreement, dated
February 14, 2003, which Columbia alleges bars Count III because
the claim there asserted arose prior to the date of the release.
Plaintiff rejoins that the release was procured by fraud.
Columbia answers that the complaint fails to allege fraud in the
inducement of the release.
The fundamental difficulty here is that the release is not
referred to in the complaint. Columbia is seeking to invoke the
release, an affirmative defense, in a motion to dismiss. While an
affirmative defense properly may be raised by a motion to
dismiss, that is so only where the defense appears on the face of
the pleading and the documents incorporated therein. That is not
the case here. Although the complaint contains a passing
reference to the Separation and Consulting Agreement, it would be
inappropriate to regard it as incorporating that document by
In the circumstances, the appropriate course is to deny the
motion to dismiss, saving to defendant the ability to raise the
release as a defense on a motion for summary judgment or at
trial. Motion denied.
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