170 West Village Associates v. G & E Realty, Inc.

• Decision Date: 25 November 2008
• Docket Number: 4651.
• Parties: 170 WEST VILLAGE ASSOCIATES, Respondent, v. G & E REALTY, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

56 A.D.3d 372

868 N.Y.S.2d 36

2008 NY Slip Op 09263

170 WEST VILLAGE ASSOCIATES, Respondent, v. G & E REALTY, INC., Appellant.

4651.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided November 25, 2008.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered April 10, 2008, which granted plaintiff's motion to strike seven affirmative defenses, and denied defendant's cross motion to replead them except for the first, if repleaded within 10 days, unanimously modified, on the law, the cross motion granted without limitation, and otherwise affirmed, without costs.

The commercial tenant's challenged affirmative defenses, which pleaded conclusions of law without supporting facts, were properly stricken as insufficient (see generally Morgenstern v Cohon, 2 NY2d 302 [1957]; see also Petracca v Petracca, 305 AD2d 566, 567 [2003]). Leave to replead is ordinarily freely granted (CPLR 3025 [b]) absent a showing it would cause surprise or prejudice (Arriaga v Laub Co., 233 AD2d 244 [1996]), which plaintiff condominium sponsor failed to allege adequately. Moreover, defendant's motion papers reasonably explained the basis for asserting the six affirmative defenses unconditionally dismissed by the court.

Concur — LIPPMAN, P.J., GONZALEZ, MOSKOWITZ, ACOSTA AND RENWICK, JJ.