LGS Realty Partners LLC v Kyle

[*1] LGS Realty Partners LLC v Kyle 2015 NY Slip Op 51643(U) Decided on November 18, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 18, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ.
570849/14

LGS Realty Partners LLC and AHA Realty Partners LLC, Petitioners-Landlords-Respondents,

against

William Kyle, Kathryn Gilbert and Mary Kyle Respondents-Tenants-Appellants.

Tenants appeal from 1) a final judgment of the Civil Court of the City of New York, New York County (Sabrina B. Kraus, J.), entered on or about May 5, 2014, after nonjury trial, which awarded landlord possession and a recovery of rent arrears in the principal sum of $84,045.01 in a nonpayment summary proceeding, and 2) an order of the same court (Phyllis K. Saxe, J.), entered on or about April 15, 2013, which denied tenants' motion, in effect, to amend their answer to add a counterclaim.

Per Curiam.

Final judgment (Sabrina B. Kraus, J.), entered on or about May 5, 2014, modified by awarding tenants a 25% rent abatement on their claim for breach of the warranty of habitability for the period April 1, 2008 though June 30, 2010 and by reducing landlord's net recovery for rent to the sum of $73,715.01; as modified, final judgment, affirmed, without costs. Appeal from order (Phyllis K. Saxe, J.), entered on or about April 15, 2013, affirmed, without costs.

Upon our review of the record, we are satisfied that Civil Court properly resolved the rent and habitability issues relating to the period July 2010 through February 2014, and that an increase in the amount of the abatement awarded to tenants for this period is not warranted. A fair interpretation of the evidence supports the court's express finding that tenant William Kyle "did not cooperate with [landlord's] attempts to make repairs, and that Kyle often interfered and prevented or prolonged the work to be done." However, we conclude that tenants were entitled to an increase in the abatement for the period of April 1, 2008 though June 30, 2010, consistent with the abatement granted in the prior proceeding for the period through March 31, 2008 (see LGS Realty Partners LLC v Kyle, 29 Misc 3d 44 [2010]). The rent impairing conditions that existed through March 31, 2008 were clearly not remedied by April 1, 2008, and the aforementioned wrongful conduct of tenant was not evident during this earlier (April 2008 through June 2010) period.

The court providently exercised its discretion in denying tenants' eve of trial motion, in effect, to amend their answer to counterclaim for interest on a modified judgment from the prior [*2]proceeding. Even disregarding the procedural irregularity of the request (see CPLR 5015[d]), tenants offered no excuse for their unreasonable delay (see Borges v Placeres, 123 AD3d 611 [2014]; American Cleaners, Inc. v American Intl. Specialty Lines Ins. Co., 68 AD3d 792 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: November 18, 2015