Nieves v. 1097 Walton Realty Co. — 220 A.D.2d 329

Majority

p. 329

Jonathan Nieves, an Infant, by His Mother and Natural Guardian, Ramona Morel, et al., Respondents, v 1097 Walton Realty Co., Also Known as 1097-99 Walton Realty Co. or 1099 Walton Realty, Appellant, and National Management Consultants, Inc., et al., Respondents.

[633 NYS2d 115]

—Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered on or about June 30, 1994, which, inter alia, denied defendant-appellant’s motion for leave to amend its answer to assert counterclaims against plaintiff mother and granted plaintiffs cross motion to strike defendant-appellant’s first and second affirmative defenses of culpable conduct and assumption of the risk, unanimously affirmed, with costs.

We agree with the IAS Court that the proposed counterclaims were simply a disingenuous attempt to assert a negligent supervision claim against the plaintiff mother contrary to well-settled law (Holodook v Spencer, 36 NY2d 35 , 51). Inasmuch as Multiple Dwelling Law § 78 and Administrative Code of the City of New York § 27-2013 (h) impose nondelegable duties upon defendant to keep its premises in good repair and remove or cover lead paint therein, respectively, the IAS Court properly struck the affirmative defenses of culpable conduct and assumption of the risk. Concur—Sullivan, J. P., Kupferman, Asch and Tom, JJ.

Cases cited

Holodook v. Spencer 36 NY2d 35 N.Y. 1974-12-20 at 51 p. 329