Century Federal Savings & Loan Ass'n v. Net Realty Holding Trust

87 A.D.2d 858, 449 N.Y.S.2d 293, 1982 N.Y. App. Div. LEXIS 16339

Opinion

In an action to reform a lease and to declare the rental escalation clause of that lease unconscionable, defendant appeals from an order of the Supreme Court, Nassau County (Murphy, J.), dated March 13,1981, which denied its motion to dismiss plaintiff’s complaint. Order affirmed, with $50 costs and disbursements. While we agree with Special Term that defendant’s motion to dismiss plaintiff’s complaint should be denied, the issue of whether defendant should be equitably estopped from asserting the Statute of Limitations as an affirmative defense to plaintiff’s complaint is not a question of law, but rather a question of fact, which should be fully developed and determined upon the trial of the action. Titone, J. P., Lazer, Niehoff and Rubin, JJ., concur.