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308 West 78th Corp. v. 360 9 Rest, LLC

Supreme Court of New York, First Department

March 11, 2014

308 West 78th Corp., Plaintiff-Appellant,
v.
360 9 Rest, LLC, etc., et al., Defendants-Respondents. 308 West 78th Corp., Plaintiff-Appellant,
v.
D & E Holdings and Management, LLC, et al., Defendants-Respondents.

Zane and Rudofsky, New York (Eric S. Horowitz of counsel), for appellant.

Schillinger & Finsterwald, LLP, White Plains (Peter Schillinger of counsel), for respondents.

Gonzalez, P.J., Tom, Friedman, Andrias, Saxe, JJ.

Orders, Supreme Court, New York County (Joan M. Kenney, J.), entered June 17, 2013, which denied plaintiff's motion for an order granting summary judgment on its claims, striking defendants' affirmative defenses and dismissing the counterclaims, unanimously modified, on the law, to the extent of striking the affirmative defenses other than the second, third and fourteenth, which remain to the extent that they allege that plaintiff failed to state a cognizable cause of action, that defendants did not default on obligations under the settlement agreement, and that plaintiff waived any alleged default, and to dismiss all counterclaims, and otherwise affirmed, without costs.

The motion court properly denied plaintiff's motion for summary judgment on its claims for payment. There are issues of fact with respect to whether defendants breached their payment obligations under the settlement agreement by failing to make the payments scheduled for July 1, 2012 or whether, under the circumstances, any claim of breach of those payment obligations was waived by the conduct of the parties (Sosnoff v Carter, 165 A.D.2d 486, 492 [1st Dept 1991]).

The court erred in failing to strike the majority of the affirmative defenses and to dismiss the counterclaims, which are either lacking in factual support or meritless on their face.


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