Dale Renting Corp. v. Bard
| Decision Date | 24 May 1963 |
| Citation | 240 N.Y.S.2d 488,39 Misc.2d 266 |
| Parties | DALE RENTING CORP. v. Anna BARD et al. |
| Court | New York Supreme Court |
A. I. Madison, Brooklyn, for plaintiff.
Samuel Weiss, New York City, for defendants.
In this action to recover damages alleged to have been sustained by the plaintiff in consequence of the defendants' failure to restore a firedamaged premises of which the plaintiff was the tenant under a lease, the plaintiff moves for an order striking out five affirmative and separate defenses and a partial defense pursuant to Rule 109(6) of the Rules of Civil Practice and granting plaintiff summary judgment and a hearing to assess the extent of plaintiff's damages.
In a prior action for a declaratory judgment instituted by the plaintiff against the defendants, which was consolidated with a summary proceeding initiated by the defendants as landlords, the court there held that the defendants had no right to terminate the lease and were obligated and it was incumbent upon them at their own cost and expense to restore the premises to its original condition as it existed prior to the fire.
The defendants in this action have interposed as and for their first three defenses, claims of estoppel splitting causes of action and res judicata, resulting from the failure of the plaintiff to include in its original declaratory judgment action the damages claimed herein. The partial defense in essence alleges that until the final determination of the previous litigation, the plaintiff may not recover damages for the period between the date of the fire and the expiration of the defendants' time to appeal from the judgment. The fourth defense is to the effect that the defendants proceeded to repair and restore the premises within a reasonable time after the adjudication in the action for a declaratory judgment. The fifth defense in substance alleges that the failure of the defendants to proceed with the repair and restoration of the premises prior to the entry of the judgment in the declaratory action was caused by the plaintiff instituting such action and consolidating it with the summary proceeding in which proceeding the rights of the party could have been determined at a much earlier date.
The first three defenses of estoppel, splitting of causes of action and res judicata are stricken. It has been held in an analogous situation that in an action for a declaratory judgment a plaintiff does not seek to enforce a claim against...
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