Cogen Properties, Ltd. v. Griffin
| Citation | 358 N.Y.S.2d 929,78 Misc.2d 936 |
| Parties | COGEN PROPERTIES, LTD., Plaintiff, v. Edward T. GRIFFIN, Jr., et al., Defendants. |
| Decision Date | 23 August 1974 |
| Court | New York Supreme Court |
Kalter & Gottlieb, Woodbourne, for plaintiff.
Weinsoff, Weinsoff & Weinsoff, Wurtsboro (Goldstein & Goldstein, Monticello, of counsel), for defendants.
This is a motion by plaintiff to strike defendants' affirmative defense of infancy. Defendants have cross-moved for summary judgment.
Defendants Edward Griffin, Jr. and Agnes Griffin, husband and wife, are the owners of a building lot in the Town of Mamakating, Sullivan County. On September 14, 1972, plaintiff and the defendant Edward Griffin, Jr., entered into a written agreement for the building of a house on defendants' lot. In accordance with the agreement, Mr. Griffin paid plaintiff a $1000 down payment. Subsequent to the signing of the contract, Mr. Griffin decided to disaffirm the contract on the ground that both he and his wife were infants at the time the contract was signed.
Thereafter, plaintiff commenced an action in Supreme Court, Sullivan County, against Edward Griffin, Jr. and Agnes Griffin to foreclose a mechanic's lien in the amount of.$19,000 which it had filed on the premises. Defendants asserted the affirmative defense of infancy and also counterclaimed to recover the $1000 down payment and an additional $1000 for willful exaggeration of the lien.
Defendants moved for summary judgment, which motion was denied by Special Term. Upon appeal, the Appellate Division reversed on the sole ground that there was an absence of a proper person representing the interests of the infant defendants, an issue not raised before Special Term (Cogen Props. v. Griffin, 42 A.D.2d 915, 347 N.Y.S.2d 364). The court denied the motion without prejudice to a renewal thereof upon a proper appearance on behalf of the defendants.
Plaintiff commenced a second action against the present defendants and in its first cause of action seeks the same relief as in the original action. Plaintiff also asserts a second cause of action for breach of contract and a third cause of action for the establishment of an equitable lien on the premises.
Defendants have interposed a first affirmative defense that there is a prior action pending. They have also asserted a second affirmative defense of infancy and by way of counterclaim seek to recover their $1000 down payment and $15,000 for willful exaggeration of lien.
Assuming Arguendo, that the prior action between the parties is still pending and was not a nullity because of a jurisdictional defect, this court need not dismiss the present action but may make such order as justice requires (CPLR 3211, subd. (a), par. 4). Since all the parties are properly...
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Dunn v. Dunn
...the motion (see Zizzi v. Zizzi, 69 Misc.2d 977, 331 N.Y.S.2d 295; affd. 33 A.D.2d 926, 306 N.Y.S.2d 961; see, also, Cogen Props. v. Griffin, 78 Misc.2d 936, 358 N.Y.S.2d 929, revd on other grds 42 A.D.2d 915, 347 N.Y.S.2d 364; Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Bo......