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BANDBOX SPORTSWEAR v. FASHION WEAR REALTY CO. INC. (10/07/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


October 7, 1969

BANDBOX SPORTSWEAR, INC., APPELLANT,
v.
FASHION WEAR REALTY CO. INC., RESPONDENT

Concur -- Eager, J. P., Capozzoli, Tilzer, McGivern and Markewich, JJ.

In this action by a tenant against a landlord to recover damages sustained by the plaintiff as a result of an explosion and fire in the central heating system in the building, section 5-321 of the General Obligations Law precludes a defense based on the pleaded covenant in the lease insofar as such covenant purports to exempt the landlord from liability for its negligence. The defense may not be sustained on the theory that it is merely a "mutual covenant of waiver" of the rights of the parties against each other to the extent that the damages were covered by insurance agreed to be procured by the parties to cover their respective damages caused by an accident. In this connection, it may be noted that the defense, as alleged, does not contain a statement that the tenant's damages were covered in whole or in part by insurance issued to it or that the tenant had received insurance proceeds in satisfaction in whole or in part of its damages.

Disposition

Order, entered January 6, 1969, unanimously reversed, on the law, with $50 costs and disbursements to the appellant, and plaintiff's motion to dismiss defense granted, with costs.

19691007

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