WARWICK v. CRUZ

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiffs' motion which was to dismiss the appellant's fourth and sixth affirmative defenses is denied.

Upon a motion to dismiss a defense, a defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed (see, Abney v. Lunsford, 254 A.D.2d 318 ). If there is any doubt as to the availability of a defense, it should not be dismissed (see, Becker v. Elm Air Conditioning Corp., 143 A.D.2d 965 ; Duboff v. Board of Higher Educ. of City of N.Y., 34 A.D.2d 824 ). Affording the appellant every reasonable intendment of the pleading, dismissal of the fourth and sixth affirmative defenses was improper under the circumstances.

THOMPSON, J.P., FEUERSTEIN, SCHMIDT, and SMITH, JJ., concur.