Opinion
November 15, 1991
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Callahan, A.P.J., Denman, Green, Pine and Davis, JJ.
Order and judgment unanimously modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: Plaintiff's breach of express warranty cause of action was improperly dismissed by Supreme Court because there are triable issues of fact concerning whether defendant had met its contractual obligation to keep the asbestos insulation in the subject building in good repair prior to assigning the lease to plaintiff. Contrary to the finding of Supreme Court, defendant had agreed, by the terms of that lease, to do any repair to the building, without limitation (cf., Wolf v. 2539 Realty Assocs., 161 A.D.2d 11). In assigning the lease to plaintiff, defendant warranted that the building was in good repair. Defendant submitted facts sufficient to show that the asbestos insulation in the building had been in good repair at the time of the assignment. However, plaintiff submitted the affidavit of an expert, who was familiar with the history of asbestos insulation in the subject building. He concluded that the insulation was in a condition requiring repair at the time of the transfer. That affidavit raised a triable issue of fact precluding judgment as a matter of law.
For the reasons stated at Supreme Court, plaintiff's fraudulent concealment cause of action was properly dismissed.
Accordingly, the order and judgment of Supreme Court is modified to the extent that defendant's motion is denied with respect to the second cause of action. Therefore, the second cause of action of the complaint is reinstated.