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

Appellate Division of the Supreme Court of the State of New York·Decided March 26, 1962·Published·Cited by 1 cases

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.

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).

Pincite

15 A.D.2d 957 (Hilltop Village Cooperative No. 4, Inc. v. Kessler) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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