General Denial in New York

What Is a General Denial?

Background

Under a general denial, a defendant may disprove any fact necessary to establish a prima facie case. (Stevens v. N. Lights Assocs., 229 A.D.2d 1001, 1002 [4th Dept. 1996].) The rule here is simple: under denials, the defendant may offer any evidence tending to disprove anything the plaintiff would be permitted to offer evidence to prove. (Id.) Anything the plaintiff has the burden of proving, the defendant has the right to disprove. (Palmier v. U.S. Fidelity and Guar. Co., 135 A.D.2d 1057, 1059 [3rd Dept. 1987].)

How to Structure the Motion

“A party shall deny those statements known or believed by him to be untrue. He shall specify those statements as to the truth of which he lacks knowledge or information sufficient to form a belief and this shall have the effect of a denial. All other statements of a pleading are deemed admitted, except that where no responsive pleading is permitted they are deemed denied or avoided.” (Civ. Prac. Law & Rules, § 3018(a).)

It is well established that where “the cause of action is based upon documentary evidence, the authenticity of which is not disputed, a general denial, without more, will not suffice to raise an issue of fact.” (Gould v. McBride, 36 A.D.2d 706 [1st Dept. 1971].)

However, summary judgment prevents a defendant from utilizing its general denial, even in a verified answer, for the “mere purpose of delay.” (General Inv. Co. v. Interborough R.T. Co., 235 N.Y. 133, 138 [1923].) It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985].) Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980].)

An affidavit opposing a motion for summary judgment should indicate that it is being made by one having personal knowledge of the facts; an affidavit containing only conclusory opinions or speculative allegations, or based on surmise, conjecture, or suspicion, is insufficient to raise a triable issue of fact. (Webb v. Tire and Brake Distributor, Inc., 13 A.D.3d 835 [3rd Dept. 2004].) Denials of information sufficient to form a belief are not enough to defeat a motion for summary judgment; a defendant must show evidentiary facts, as a motion for summary judgment may not be defeated by lack of knowledge, surmise, conjecture or suspicion. (Shapiro v. Health Insurance Plan of Greater N.Y., 7 N.Y.2d 56 [1959].)

The defendant is required in his verified answer to specifically dispute the items on the plaintiff’s list. (Summit Sec. Servs., Inc. v. Main St. Lofts Yonkers, LLC, 73 A.D.3d 906 [2010].) Failure to make such specific denials constitutes an admission of the schedule’s items and may constitute a sufficient basis for granting summary judgment to the plaintiff. (Netguistics, Inc. v. Coldwell Banker Prime Props., Inc., 23 A.D.3d 719 [2005].) The degree of specificity required is satisfied when the opposing party is able to respond in a meaningful way on an item-by-item basis. (Teal, Becker & Chiaramonte, CPAs v. Sutton, 197 A.D.2d 768, 769 [1993].)

The Court’s Decision

“A party cannot employ a catch-all provision in an attempt to preserve any and all potential defenses/objections for future use without affording notice to the opposing party.” (Scholastic Inc. v. Pace Plumbing Corp., 129 A.D.3d 75, 79 [1st Dept. 2015].) A party suffers prejudice where he or she “has been hindered in the preparation of his [or her] case or has been prevented from taking some measure in support of his [or her] position.” (DiMauro v. Metropolitan Suburban Bus. Auth., 105 A.D.2d 236, 240 [2nd Dept. 1984].) In the event the court finds the affirmative defenses are deficient due to lack of accompanying facts, leave to replead is ordinarily granted absent a showing of surprise, prejudice, or abuse of discretion. (Janssen v. Inc. Vil. of Rockville Ctr., 59 A.D.3d 15, 27 [2nd Dept. 2008].)

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