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SAN-DAR ASSOCIATES v. FRIED

4291. 150850/12.

151 A.D.3d 545 (2017)

2017 NY Slip Op 04884

54 N.Y.S.3d 273

SAN-DAR ASSOCIATES et al., Appellants-Respondents, v. JACQUELINE FRIED et al., Respondents-Appellants.

Appellate Division of the Supreme Court of New York, First Department.

Decided June 15, 2017.

While the record establishes that defendants' building now uses more floor area than was reported in previous filings with the Department of Buildings (DOB), it presents questions of fact as to when the increase occurred and whether the building had a basement that was part of the floor-space calculation.

The motion court was free not to dismiss the "affirmative defense" of failure to state a claim, because failure to state may

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