
    San-Dar Associates et al., Appellants-Respondents, v Jacqueline Fried et al., Respondents-Appellants.
    [54 NYS3d 273]
   Order, Supreme Court, New York County (Donna M. Mills, J.), entered on or about May 19, 2016, which denied plaintiffs’ motion for summary judgment on the complaint and dismissing the affirmative defenses and the counterclaim for slander of title, and denied defendants’ motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant plaintiffs’ motion as to the counterclaim, and otherwise affirmed, without costs.

While the record establishes that defendants’ building now uses more floor area than was reported in previous filings with the Department of Buildings (DOB), it presents questions of fact as to when the increase occurred and whether the building had a basement that was part of the floor-space calculation.

The motion court was free not to dismiss the “affirmative defense” of failure to state a claim, because failure to state may be asserted at any time even if not pleaded (CPLR 3211 [e]) and is therefore “mere surplusage” as an affirmative defense (Bernstein v Freudman, 136 AD2d 490, 492-493 [1st Dept 1988], citing Riland v Todman & Co., 56 AD2d 350 [1st Dept 1977]). Plaintiff has not established any legal basis to dismiss the other affirmative defenses at this juncture.

The counterclaim for slander to title is based on statements made in and pertinent to this litigation, which are absolutely privileged (see Hinckley v Resciniti, 159 AD2d 276 [1st Dept 1990]).

Concur — Acosta, P.J., Richter, Feinman, Webber and Kahn, JJ.  