HON. PAUL WOOTEN Justice
The following papers, numbered 1 to 4, were read on this motion by plaintiff to strike the answer
Notice of Motion/ Order to Show Cause - Affidavit Exhibits 1. 2. 3
Answering Affidavits - Exhibits (Memo) 4
Replying Affidavits (Reply Memo)
Before the Court is a motion by Michael Meier (plaintiff), pursuant to CPLR 3126, to strike the answer of defendants LerinyDanieSporn (Sporn), Meir Mickey Roth (Roth) and Roth Sporn Group, LLC (RSG) (collectively, the "Roth Sporn defendants"), for preclusion, costs and legal fees. Plaintiff also moves for dismissal of the first and second counterclaims asserted in the Roth Sporn defendants' answer pursuant to CPLR 3211(a)(3) and (7), and for sanctions pursuant to 22 NYCRR § 130*1;1 Also before the Court is a cross-motion by the Roth Sporn defendants, pursuant to CPLR 3124, to compel discovery from plaintiff.
Subsequent to the filing of the abovementioned motions, the Roth Sporn defendants withdrew their cross-motion, as well as the second counterclaim contained within their answer (see Transcript dated August10, 2011, p. 4, 9). Additionally, by letter, plaintiff withdrew the portions of his motion made pursuant to CPLR 3126, Accordingly, the only issues left before the Court are the portions of plaintiff's motion seeking to dismiss the Roth Sporn defendants' first counterclaim, as well as plaintiff's request for the imposition of sanctions against the Roth Sporn defendants for bringing said counterclaim.
Motion to Dismiss
When determining a CPLR 3211 (a) motion, "we liberally construe the complaint and accept as true the facts alleged in the complaint and any submissions in opposition to the dismissal motion" (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 N.Y.2d 144, 151-152 ; see Leon v Martinez, 84 N.Y.2d 83, 87 ; Sokoloff v Harriman Estates Dev. Corp., 96 N.Y.2d 409 [2001 ]; Wieder v Skala, 80 N.Y.2d 628 ). To defeat a pre-answer motion to dismiss pursuant to CPLR 3211, the opposing party need only assert facts of an evidentiary nature which fit within any cognizable legal theory (Bonnie & Co. Fashions v Bankers Trust Co., 262 A.D.2d 188 [1st Dept 1999]). Further, the movant has the burden of demonstrating that, based upon the four corners of the complaint liberally construed in favor of the plaintiff, the pleading states no legally cognizable cause of action (see Guggenheimer v Ginzburg, 43 N.Y.2d 268 ; Salles v Chase Manhattan Bank, 300 A.D.2d 226 [1st Dept 2002]).
The defense that a party lacks capacity to sue is waived if not raised in a pre-answer motion or in a responsive pleadings (see Lance Intern, Inc. v First Nat. City Bank, 86 A.D.3d 479 [1st Dept 2011]; CPLR 3211[e]). A motion to dismiss, pursuant to CPLR 3211(a)(3), will be granted when the movant establishes that the party asserting the claim lacks the legal capacity to sue. "The issue of lack of capacity does not implicate the jurisdiction of the court; it is merely a ground for dismissal if timely raised as a defense" (Security Pac. Natl. Bank v Evans, 31 A.D.3d 278, 279 [1st Dept 2006] [international citation omitted]). The doctrine of legal capacity "concerns a litigant's power to appear and bring its grievance before the court" (id. at 279).
Upon a CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action, the "question for us is whether the requisite allegations of any valid cause of action cognizable by the state courts 'can be fairly gathered from all the averments'" (Foley v D'Agostino, 21 A.D.2d 60, 65 [1st
Dept 1964], quoting Condon v Associated Hosp. Sen., 287 NY 411, 414 ). "However imperfectly, informally or even illogically the facts may be stated, a complaint, attacked for insufficiency, is deemed to allege 'whatever can be implied from its statements by fair and reasonable intendment'" (Foley v ...