In an action to recover damages for the alleged breach of a construction contract, and to enforce liability upon an indemnity bond executed in connection with said contract, the plaintiff corporation appeals from a resettled order of the Supreme Court, Queens County, dated October 5, 1959, which (1) denied its motion, pursuant to subdivision 6 of rule 109 of the Rules of Civil Practice, to strike out defendants' separate affirmative and partial defense on the ground that such defense was insufficient in law; and (2) granted defendants' cross motion, pursuant to rules 113 and 114 of the Rules of Civil Practice, for partial summary judgment dismissing specified subdivisions of paragraph eleventh of the complaint. Resettled order modified: (1) by striking out the second, third and fourth decretal paragraphs granting defendants' cross motion for partial summary judgment dismissing subdivisions g, h, j, n, p, q and w of the eleventh paragraph of the complaint; and (2) by substituting therefor a paragraph denying defendants' cross motion for such partial summary judgment. As so modified, order affirmed, without costs. The said defense and the said cross motion for partial summary judgment were based, in substance, upon the claim that certain defects in construction, alleged in the complaint, were waived and that plaintiff was estopped from asserting any right to relief in connection with those defects. Defendants' claims of waiver and estoppel were predicated upon allegations that all the occupant-shareholders of the plaintiff corporation accepted their respective apartments subject only to specific defects, which were repaired subsequently by defendants. On the motion for partial summary judgment, defendants also contended that plaintiff was not damaged by the defects in question (which were in various apartments), since each occupant-shareholder had agreed with plaintiff to make all interior repairs to the dwelling unit. In our opinion, the affirmative defense was sufficient as a matter of law (cf. Capitol Wine Spirit Corp. v. Pokrass, 277 App. Div. 184, 187, affd. 302 N.Y. 734; Diamond v. Diamond, 307 N.Y. 263, 266-267). Issues of fact, however, were presented which precluded the granting of summary judgment. Those issues included the questions of whether defendants had remedied the defects which had been listed by the occupant-shareholders; whether the defects so listed differed from those set forth in the challenged subdivisions of paragraph eleventh of the complaint; whether the occupants waived all defects other than those which they had listed (cf. Alsens A.P.C. Works v. Degnon Contr. Co., 222 N.Y. 34, 37-38; Werking v. Amity Estates, 2 N.Y.2d 43, 52); and whether plaintiff was damaged by reason of the defects alleged in the challenged subdivisions of the complaint. Ughetta, Acting P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.