Appeal from Genesee, Harry B. McAra, J.
Leave to appeal applied for.
Danhof, P. J., and V. J. Brennan and M. J. Kelly, JJ. V. J. Brennan, J., concurred. M. J. Kelly, J. (concurring).
1. Pleading -- Words and Phrases -- Counterclaims.
A claim brought against an opposing party is properly labeled a counterclaim (GCR 1963, 203.2).
2. Judgment -- Summary Judgment -- Failure to State Claim -- Well-Pleaded Facts -- Tests -- Unenforceable Claims -- Matter of Law -- Factual Developments.
A motion for summary judgment granted on the basis that the nonmoving party has failed to state a claim upon which relief can be granted is to be tested only by the pleadings and in examining those pleadings a court must accept as true the well-pleaded facts contained therein; the test which the court should apply in considering such a motion is whether the claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery.
3. Landlord and Tenant -- Torts -- Breach of Covenants -- Covenant to Repair -- Summary Judgment -- Failure to State Claim.
A tort action by a tenant cannot be based upon a landlord's breach of a covenant to make repairs, and where a party's claim is so based, it is clearly unenforceable and an order granting summary judgment on the basis that the claimant has failed to state a claim upon which relief can be granted is proper.
Concurring by M.J. Kelly, J.
4. Landlord and Tenant -- Torts -- Case Precedent -- Breach of Covenant -- Covenant to Repair -- Modern Trends.
Case precedent holds that an action in tort by a tenant cannot be based upon a breach by the landlord of a covenant to make repairs, and the Court of Appeals as an intermediate court is bound to follow existing precedent; but the modern trend is toward holding that a lessor's breach of his agreement to repair constitutes ground for holding him liable for personal injury to his tenant, ...