Hilltop Village Cooperative No. 4, Inc. v. Kessler

Appellate Division of the Supreme Court of New York

Hilltop Village Cooperative No. 4, Inc. v. Kessler

15 A.D.2d 957, 226 N.Y.S.2d 653, 1962 N.Y. App. Div. LEXIS 10804

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 26, 1962

StatusPublished

Cited by1 cases

This text of 15 A.D.2d 957 (Hilltop Village Cooperative No. 4, Inc. v. Kessler) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hilltop Village Cooperative No. 4, Inc. v. Kessler, 15 A.D.2d 957, 226 N.Y.S.2d 653, 1962 N.Y. App. Div. LEXIS 10804 (N.Y. Ct. App. 1962).

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Opinion

In our opinion, the affirmative defense was sufficient as a matter of law (cf. Capitol Wine & Spirit Corp. v. Pokrass, 277 App. Div. 184, 187, affd. 302 N. Y. 734; Diamond v. Diamond, 307 N. Y. 283, 266-267). Issues of fact, however, were presented which precluded the granting of summary judgment. Those issues included the questions of whether defendants had remedied the defects which had been listed by the occupant-shareholders; whether the defects so listed differed from those set forth in the challenged subdivisions of paragraph eleventh of the complaint; whether the occupants waived all defects other than those which they had listed (cf. Alsens A. P. C. Works v. Degnon Contr. Co., 222 N. Y. 34, 37-38; Werking v. Amity Estates, 2 N Y 2d 43, 52); and whether plaintiff was damaged by reason of the defects alleged in the challenged subdivisions of the complaint. Ughetta, Acting P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.

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In our opinion, the affirmative defense was sufficient as a matter of law (cf. Capitol Wine & Spirit Corp. v. Pokrass, 277 App. Div. 184, 187, affd. 302 N. Y. 734; Diamond v. Diamond, 307 N. Y. 283, 266-267). Issues of fact, however, were presented which precluded the granting of summary judgment. Those issues included the questions of whether defendants had remedied the defects which had been listed by the occupant-shareholders; whether the defects so listed differed from those set forth in the challenged subdivisions of paragraph eleventh of the complaint; whether the occupants waived all defects other than those which they had listed (cf. Alsens A. P. C. Works v. Degnon Contr. Co., 222 N. Y. 34, 37-38; Werking v. Amity Estates, 2 N Y 2d 43, 52); and whether plaintiff was damaged by reason of the defects alleged in the challenged subdivisions of the complaint. Ughetta, Acting P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.

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Bluebook (online)

15 A.D.2d 957, 226 N.Y.S.2d 653, 1962 N.Y. App. Div. LEXIS 10804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hilltop-village-cooperative-no-4-inc-v-kessler-nyappdiv-1962.

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