Hilltop Village Cooperative No. 4, Inc. v. Kessler

In our opinion, the affirmative defense was sufficient as a matter of law (cf. Capitol Wine & Spirit Corp. v. Pokrass, 277 App. Div. 184, 187, affd. 302 N. Y. 734; Diamond v. Diamond, 307 N. Y. 283, 266-267). Issues of fact, however, were presented which precluded the granting of summary judgment. Those issues included the questions of whether defendants had remedied the defects which had been listed by the occupant-shareholders; whether the defects so listed differed from those set forth in the challenged subdivisions of paragraph eleventh of the complaint; whether the occupants waived all…