Swacker v. Moody

Appellate Division of the Supreme Court of New York

Swacker v. Moody

5 A.D.2d 836, 170 N.Y.S.2d 576, 1958 N.Y. App. Div. LEXIS 7071

Appellate Division of the Supreme Court of the State of New York·Decided February 3, 1958·Published

Opinion

In an action by a tenant against a landlord to recover for property damage alleged to have been sustained when a water pipe broke, flooding the tenant’s premises, the landlord appeals from an order striking out the affirmative defense pleaded in its answer. Order affirmed, with $10 costs and disbursements. The defense pleads certain provisions of a lease which purport to exempt appellant from liability for damages alleged to have been caused by its negligence in the operation of the demised premises, and which are consequently void and unenforeible (Real Property Law, § 234). Reversal is not required because appellant has pleaded in addition to the allegations with respect to the provisions of the lease other facts which are repetitions of denials contained in its answer. (Cf. Zirn v. Bradley, 268 App. Div. 1063; Schiff v. Schiff, 270 App. Div. 845; Italian Cook Oil Corp. v. Alderson, 274 App. Div. 802.)

Nolan, P. J., Wenzel, Beldock, Murphy and Ughetta, JJ., concur.

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In an action by a tenant against a landlord to recover for property damage alleged to have been sustained when a water pipe broke, flooding the tenant’s premises, the landlord appeals from an order striking out the affirmative defense pleaded in its answer. Order affirmed, with $10 costs and disbursements. The defense pleads certain provisions of a lease which purport to exempt appellant from liability for damages alleged to have been caused by its negligence in the operation of the demised premises, and which are consequently void and unenforeible (Real Property Law, § 234). Reversal is not required because appellant has pleaded in addition to the allegations with respect to the provisions of the lease other facts which are repetitions of denials contained in its answer. (Cf. Zirn v. Bradley, 268 App. Div. 1063; Schiff v. Schiff, 270 App. Div. 845; Italian Cook Oil Corp. v. Alderson, 274 App. Div. 802.)

Nolan, P. J., Wenzel, Beldock, Murphy and Ughetta, JJ., concur.

Swacker v. Moody, 5 A.D.2d 836, 170 N.Y.S.2d 576, 1958 N.Y. App. Div. LEXIS 7071 (N.Y. Ct. App. 1958).

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