Frederick Munsey, Plaintiff–Respondent, v. Antoinette Sindone, Defendant–Appellant.

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Supreme Court, Appellate Division, First Department.

Frederick Munsey, Plaintiff–Respondent, v. Antoinette Sindone, Defendant–Appellant.

3228

Decided: February 28, 2017

Renwick, J.P., Mazzarelli, Moskowitz, Kapnick, Webber, JJ. Gorton & Gorton, LLP, Mineola (John Gorton of counsel), for appellant. Bergman, Bergman, Goldberg, Fields & Lamonsoff, LLP, Hicksville (Allen Goldberg of counsel), for respondent.

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Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered April 8, 2016, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

There is an issue of fact as to whether the “as is” clause in the lease is applicable to plaintiff, whose signature does not appear on the lease, and who claims to have been a subtenant in the subject premises (see e.g. McCarthy v Board of Mgrs. of Bromley Condominium, 271 A.D.2d 247, 247 [1st Dept 2000] ).  In any event, as the motion court noted, a lease provision exempting defendant owner from liability for her own negligence is “void as against public policy and wholly unenforceable” (General Obligations Law § 5–321).

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CLERK