Opinion
April 26, 1971
Appeal by defendants, as limited by their brief, from so much of an order of the Supreme Court, Kings County, dated March 11, 1970, as denied their motion, pursuant to CPLR 3042, to modify plaintiff's demand for a bill of particulars. Order modified by (1) deleting plaintiff's demands numbered 1, 5, 7, 8, 11, 12, 15, 16 and 18, as academic; and (2) by striking from the answer, sua sponte, defendants' separate and distinct defenses contained in paragraphs numbered 6, 10, 12, 15, 16, 17, 18, 20, 21 and 22, with leave to replead such defenses in accordance with this memorandum. As so modified, order affirmed, with $10 costs and disbursements to plaintiff. Defendants shall serve such amended defenses within 20 days after entry of the order hereon. Plaintiff alleges four causes of action against defendants, to wit: (1) damages resulting from his allegedly unlawful eviction by defendants from the latters' apartment; (2) damages to his property resulting from the eviction; (3) damages for increased rent paid by him because of the eviction; and (4) for an order granting him repossession of the subject apartment. In the 10 paragraphs of the answer referred to supra, defendants, without pleading any supporting facts, interpose as separate and distinct (affirmative) defenses, that: (1) the complaint fails to state facts sufficient to constitute the causes of action alleged; (2) the plaintiff is barred from obtaining relief under the third and fourth causes of action because of the doctrines of waiver and estoppel; (3) he is likewise barred from obtaining relief under the fourth cause of action because of laches; and (4) as a partial defense to the third cause of action, that the plaintiff failed to fulfill his obligation to mitigate damages. In our opinion, such pleadings, being totally bereft of factual data, are fatally deficient and should be struck out by this court sua sponte, even though plaintiff has demanded particulars with respect thereto. Defenses which merely plead conclusions of law without supporting facts are insufficient ( MacIver v. George Braziller, Inc., 32 Misc.2d 477; CPLR 3018 subd. [b]; cf. Morgenstern v. Cohon, 2 N.Y.2d 302). A defense that a complaint does not state a cause of action cannot be interposed in an answer ( Falk v. MacMasters, 197 App. Div. 357). A proper pleading of waiver requires allegations inter alia that the adverse party was aware of certain facts and, being aware of them, elected not to take advantage of them ( Friedman v. United States Life Ins. Co., 22 Misc.2d 635). To support the claim of estoppel, facts should be alleged showing in what manner and to what extent, defendant relied on plaintiff's inconsistent conduct and was prejudiced thereby ( Village of Chester v. Kantod Park Assn., 13 A.D.2d 709). Laches is not mere delay that works disadvantage or injury; such a defense is deficient if it fails to include allegations showing not only a delay, but also injury, change of position, intervention of equities, loss of evidence, or other disadvantage resulting from such delay ( Feldman v. Metropolitan Life Ins. Co., 259 App. Div. 123). We are also of the opinion that defendants' assertion that plaintiff failed to mitigate his damages should likewise be struck out; it is totally conclusory in character and sets forth no facts as to what opportunities, of which he did not avail himself, plaintiff had to mitigate his damages (cf. Lipshie v. Lazarus, 235 N.Y.S.2d 764). Rabin, P.J., Munder, Latham, Christ and Brennan, JJ., concur.