Dept. 1971] for the alleged proposition: "Pleadings which are totally bereft of factual data, are
fatally deficient and should be struck by the Court." This is not true, and the Glenesk case
cited by defense counsel was expressly abrogated, along with several other named former
precedents of the Appellate Division, Second Judicial Department, in a leading opinion, Butler v. Catinella, 58 AD3d 145
[2nd Dept. 2008] [Rivera, J.]. In Butler, the Appellate Division, Second Department,
upheld the broad defense of a failure to state a cause of action. Pertaining to this motion, this
Court relies on counsel not citing cases to it that have been reversed, overruled, or expressly
abrogated.
That branch of the defendant owner's motion which is for an order dismissing the plaintiff's
first affirmative defense asserted against the counterclaims is granted as to the first counterclaim.
Specifically, the plaintiff alleges that the defendant owner breached the warranty of habitability
by, inter alia, failing to perform repairs and failing to provide heat. In regard to Apartment 3U,
the defense of breach of warranty of habitability is not available to Roshodesh because he does
not live in that apartment (see, Leventritt v 520 East 86th Street, Inc., 266 AD2d
45 [1st Dept. 1999], lv. to appeal denied, 94 NY2d 760 [2000]; Frisch v Bellmarc
Management, Inc., 190 AD2d 383 [1st Dept. 1999]; Halkedis v Two East End Ave.
Apartment Corp., 161 AD2d 281 [1st Dept.], appeal denied, 76 NY2d 771 [1990]).
In regard to Apartment 3V (where the plaintiff resides), the plaintiff tenant has adequately
alleged a breach of the warranty of habitability through the failure to, inter alia, provide heat.
That branch of the defendant owner's motion which is for an order dismissing the second