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170 West Village Associates v. G & E Realty

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


November 25, 2008

170 WEST VILLAGE ASSOCIATES, PLAINTIFF-RESPONDENT,
v.
G & E REALTY, INC., DEFENDANT-APPELLANT.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered April 10, 2008, which granted plaintiff's motion to strike seven affirmative defenses, and denied defendant's cross motion to replead them except for the first, if repleaded within 10 days, unanimously modified, on the law, the cross motion granted without limitation, and otherwise affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Lippman, P.J., Gonzalez, Moskowitz, Acosta, Renwick, JJ.

116072/05

The commercial tenant's challenged affirmative defenses, which pleaded conclusions of law without supporting facts, were properly stricken as insufficient (see generally Morgenstern v Cohon, 2 NY2d 302 [1957]; see also Petracca v Petracca, 305 AD2d 566, 567 [2003]). Leave to replead is ordinarily freely granted (CPLR 3025[b]) absent a showing it would cause surprise or prejudice (Arriaga v Laub Co., 233 AD2d 244 [1996]), which plaintiff condominium sponsor failed to allege adequately. Moreover, defendant's motion papers reasonably explained the basis for asserting the six affirmative defenses unconditionally dismissed by the court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081125

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