William S. Adler, Inc. v. Carlson

Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: The court properly dismissed defendants’ affirmative defenses because defendants failed to allege facts sufficient to support either a waiver or fraud on the part of plaintiff. Because the third-party complaint was based upon the same allegations as the affirmative defenses, it likewise should have been dismissed. (Appeal from order of Supreme Court, Chautauqua County, Ricotta, J.—summary judgment.) Present—Doerr, J. P., Boomer, Green, Lawton and Lowery,