170 W. Vil. Assoc. v G & E Realty, Inc.

2008 NY Slip Op 09263 [56 AD3d 372]

November 25, 2008

Appellate Division, First Department

As corrected through Wednesday, January 7, 2009

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

—[*1]The Rice Law Firm, PLLC, New York (Dan M. Rice of counsel), for appellant.

Allen H. Weiss, Lake Success, for respondent.

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'scross motion to replead them except for the first, if repleaded within 10 days, unanimouslymodified, 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 lawwithout supporting facts, were properly stricken as insufficient (see generally Morgenstern vCohon, 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 wouldcause surprise or prejudice (Arriaga v Laub Co., 233 AD2d 244 [1996]), which plaintiffcondominium sponsor failed to allege adequately. Moreover, defendant's motion papersreasonably explained the basis for asserting the six affirmative defenses unconditionallydismissed by the court. Concur—Lippman, P.J., Gonzalez, Moskowitz, Acosta andRenwick, JJ.