[DOWNLOAD] "William B. Glenesk v. Guidance Realty Corp. Et Al." by Supreme Court of New York # eBook PDF Kindle ePub Free
eBook details
- Title: William B. Glenesk v. Guidance Realty Corp. Et Al.
- Author : Supreme Court of New York
- Release Date : January 26, 1971
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 68 KB
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[36 A.D.2d 852 Page 853] Plaintiff alleges four causes of action against defendants, to wit: (1) damages resulting from his allegedly unlawful eviction
by defendants from the latters' apartment; (2) damages to his property resulting from the eviction; (3) damages for increased
rent paid by him because of the eviction; and (4) for an order granting him repossession of the subject apartment. In the
10 paragraphs of the answer referred to supra, defendants, without pleading any supporting facts, interpose as separate and
distinct (affirmative) defenses, that: (1) the complaint fails to state facts sufficient to constitute the causes of action
alleged; (2) the plaintiff is barred from obtaining relief under the third and fourth causes of action because of the doctrines
of waiver and estoppel; (3) he is likewise barred from obtaining relief under the fourth cause of action because of laches;
and (4) as a partial defense to the third cause of action, that the plaintiff failed to fulfill his obligation to mitigate
damages. In our opinion, such pleadings, being totally bereft of factual data, are fatally deficient and should be struck
out by this court sua sponte, even though plaintiff has demanded particulars with respect thereto. Defenses which merely plead
conclusions of law without supporting facts are insufficient (MacIver v. George Braziller, Inc., 32 Misc. 2d 477; CPLR 3018
subd. [b]; cf. Morgenstern v. Cohon, 2 N.Y.2d 302). A defense that a complaint does not state a cause of action cannot be
interposed in an answer (Falk v. MacMasters, 197 App. Div. 357). A proper pleading of waiver requires allegations inter alia
that the adverse party was aware of certain facts and, being aware of them, elected not to take advantage of them (Friedman
v. United States Life Ins. Co., 22 Misc. 2d 635). To support the claim of estoppel, facts should be alleged showing in what
manner and to what extent, defendant relied on plaintiff's inconsistent conduct and was prejudiced thereby (Village of Chester
v. Kantod Park Assn., 13 A.D.2d 709). Laches is not mere delay that works disadvantage or injury; such a defense is deficient
if it fails to include allegations showing not only a delay, but also injury, change of position, intervention of equities,
loss of evidence, or other disadvantage resulting from such delay (Feldman v. Metropolitan Life Ins. Co., 259 App. Div. 123).
We are also of the opinion that defendants' assertion that plaintiff failed to mitigate his damages should likewise be struck
out; it is totally conclusory in character and sets forth no facts as to what opportunities, of which he did not avail himself,
plaintiff had to mitigate his damages (cf. Lipshie v. Lazarus, 235 N. Y. S. 2d 764).