Town Mgt. Co. v Leibowitz

[*1] Town Mgt. Co. v Leibowitz 2012 NY Slip Op 22232 Decided on August 7, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

Decided on August 7, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-1369 K C.

Town Management Co., Respondent,

against

Michael Leibowitz, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Maria Milin, J.), dated March 9, 2011. The order, insofar as appealed from, granted landlord's motion to strike tenant's counterclaims for "abuse of action, common law deceit and barratry."

ORDERED that the order, insofar as appealed from, is modified by providing that landlord's motion is granted only to the extent of severing the counterclaims; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In his answer to this nonpayment proceeding, tenant interposed counterclaims for "abuse of action, common law deceit, and barratry." Upon landlord's motion to strike the counterclaims, the Housing Part struck them but, giving tenant's pleading a liberal reading, allowed tenant's supporting allegations to stand as a counterclaim for harassment pursuant to Local Law 7. Tenant appeals from so much of the order as struck his counterclaims for "abuse of action, common law deceit, and barratry."

In our view, the counterclaims for "abuse of action, common law deceit, and barratry" should have been severed, not stricken. RPAPL 743 permits a respondent in a summary [*2]proceeding to interpose any legal counterclaim. However, as residential summary proceedings in the City of New York are heard in the Housing Part of the Civil Court (see CCA 110; Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.42 [a]), which Part is not authorized to hear tort counterclaims for damages (CCA 110), the court should have severed the counterclaims for "abuse of action, common law deceit, and barratry" without passing on their merits. We modify the order, insofar as appealed from, accordingly. We note that so much of the Civil Court's order as deemed the answer to assert a counterclaim for damages for harassment pursuant to Local Law 7 is not before us (but see generally 226-228 E. 26th St. LLC v Rhodes, NYLJ, Jan. 15, 2009 [Civ Ct, NY County] [the remedies provided by Local Law 7 do not include a private right to damages]). We likewise do not pass on the validity of the severed counterclaims.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: August 07, 2012