
    Fiorucci, Inc., Respondent, v City of New York et al., Defendants, and Bertram F. Bonner, Appellant. Fiorucci, Inc., Respondent, v Bertram F. Bonner, Appellant.
   — Order of the Supreme Court, New York County, entered August 14, 1980, insofar as it granted the cross motion of plaintiff for summary judgment to dismiss the counterclaims of defendant Bonner in Action No. 2 of the consolidated action herein, unanimously reversed, on the law, without costs, and the cross motion to dismiss said counterclaims denied. The assertions by Bonner, the sublandlord, that pursuant to paragraph 45 of the sublease plaintiff, the subtenant, was required to indemnify and hold Bonner harmless from any claim for property damage and to maintain comprehensive liability insurance naming Bonner as an insured, are alleged as counterclaims. Those allegations seek, for all practical purposes, to offset plaintiff’s claims against Bonner for negligence and rent abatement, in the event and to the extent Bonner may be liable to plaintiff on those claims. In the context of this consolidated action, such allegations are more in the nature of affirmative defenses than counterclaims. Whether counterclaims or affirmative defenses, Bonner’s allegations are legally sufficient and present factual issues precluding summary judgment. Concur — Kupferman, J. P., Birns, Sandler and Bloom, JJ.  