Tennant v Manhattan Skyline Mgt. Corp.

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Tennant v Manhattan Skyline Mgt. Corp. 2012 NY Slip Op 32698(U) October 23, 2012 Supreme Court, New York County Docket Number: 116372/08 Judge: Richard F. Braun Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 1012612012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT:- r m) -n . Y K PART f w- a3 Justice -v- Answering Affidavits - Exhibits Replying Affidavits W 0 F cn 2 E P $i %c 5 2 LL UI (12 .. t p-&, w - _ _ I l N o ( ~ ) . A I No@). 3 [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YOKK: IAS PART 23 Plaintiffs, OPlNION -against- MANAGEMENT CORPORA'I'ION, MANHATTAN S K Y 1,]NE 450 VILLAGE COMPANY, L.P., 450 VILLAGE COMPANY, LLC, and ANNE ROGERS MITCHELL RICHARD F. BRAUN, J.: This is an action for a declaratory judgment that plaintiffs are the lawful rent stabilized tenants of the subject premises and that dcfcndant Anne Rogers Mitchell (Mitchell) is an illusory prime tenant; for money damages for overcharged rent by Mitchell; and for legal fees. Plaintiffs moved, pursuant to CPLR 321 1, to strike Mitchell's first through eighth affirmative defenses and most of the afilrmative defenses ofco-defendantsManhattan Skyline Management Corporation, 450 Village Company, L.P., and 450 Village Company, LLC (the co-defendants), and, pursuant lo CPLR 32 12, for summary judgment. The co-defendants cross moved for suniinary judgment dismissing the complaint, or alternatively, a denial of the motion (such a cross motion is always unnecessary [see Sullivan v 40 West 53"' Purtnemhip, NYLJ, Oct. 16, 2000, at 27, col 2 (Sup Ct, NY County 2000)]) and lcave to miend their answer. By this court's November 23,2010 decision and order, plaintiffs' prior motion was granted on default as against Mitchell to the extent of striking Mitchell's second, third, fourth, fifth, sixth, seventh and eighth affirmative defenses, and awarding plaintiffs' summary judgment as to liability on the third cause of action agaiiist Mitchell. This court also granted the cross motion of the codefendants to the extent of granting those defendants summary judgmciit. This court declared that [* 3] plaintiffs tenancy is not an illusory prime tenancy and that plaintiffs are not the lawful rent stabiliLed tenants of the subject premises. The November 23,2010 order was appealed by plaintiffs and alGrmed in Tennmt v Munhnttan Skyline Mgt (- orp.( 8 5 AD3d 557 [ 1 Dept 201 I]). Mitchell moved to vacate and set aside her default in appearing for oral argument and the resultant November 23,2010 decision and order. By this court s June I;, 2012 decision and order, Mitchell s motion was granted to the extcnt of vacating the November 23, 2010 decision and order as to Mitchell. By stipulation, datcd September 27, 2012, the parties agreed that the papers on the motion that are related to the co-dcfendants are now moot. Plaintif fs sublet Mitchell s rmt stabilized apartment. Plaintiffs allege that they were overcharged by Mitchcll. Plaintiffs claim that, because Mitchell willfully charged them rent above the rent stabilized rcnt, they =e entitled to treble damages. The Court in Krantz v Gurmise (1 3 AD2d 426,429 [ 1 Dept 19611) set forth the standard to be applied in relation to striking afknative defenses: The matter set out in thc answer as an affirmative defense should bc weighed in the light of the allegations ofthe complaint. The truth ofthe allegation is assumcd, and the pleading liberally construed. If there is any doubt as to the availability and applicability of the defciise or a mere belief- that thc proof might fall short of the defense, it should not be stricken. (citations omitted.) This court did not strike Mitchell s h-st affirmative dcfense for failurc to state a cause of action, which is mere surplusage (Tache-I-lcddud Enters. v Melohn, 224 AD2d 21 3, 214 [ lst Dept 19961; Kilund v Todman & Co., 56 AD2d 350, 352 [ 1Ft Dept 19771) and inay only be disinisscd if all the affirmative defenses arc found to be legally insufficient (see Haine v AlliedArtists Prods., 63 hD2d 914, 915 [lst Dept 19781). In this action, the court did not strike her eighth affirimative dcfensc, and plaintiff did not move with respect to her ninth affirmative defense. 2 [* 4] ,- I his court struck Mitchell's second afiirmative defensc of f'ailurc to name a necessary party and licr third affirmativc dcfcrise of lack of standing. Mitchcll does not provide any opposition to ttic striking of these affirmative dcfenses. In order for the doctrinc of unclean hands to apply, Mitchell would have to show that plaintift's are guilty of irnrnoral and unconscionable conduct (National Distillers & Chem. Corp v Seyupp C'orp., 17 NY2d 12, 15 [ 19661). Mitchell would also have to demonstrate that plaintiffs' conduct rclied on by Mitchell is directly rclatcd to the subject inatter in litigation, and that Mitchell was in*juredby plaintiffs' conduct (id, at 15-1 6; Citihank, N.A 17 Americnn Bunana C'o., Inc., 50 AD3d 593, 594 [I" Dept 20081; Frymer v Bell, 99 AD2d 91, 96 [lst Dept 19841). There are no factual allegations that would make the doctrine of unclean hands applicable. Accordingly, the court struck her fourth affirinative defense. As un.just enrichment is a claim, a theory of rccovery, rathcr than a defense (see Georgia Mulone & Cn., Inc. v Rieu'er, 86 AD3d 406, 40s [lst Dept 201 l]), this court struck her fifth affirmative defcnsc. I n any event, there are no factual allegations that plaintiffs were unjustly enriched. Plaintiffs could not waive their rights to the protection of the Rcnt Stabilization Law (see M d t w of .lo-Frn Props., h c . , 27 AD3d 298, 299 [I Dept 20061). "[Cloverage under a rcnt regulatory scheme is govcriied by statute and may not be created or destroyed by laches, waiver and estoppel (id.; see Ruiz v C'hwntt Assoc., 247 hD2d 308 [l" Dept 19981). 'There are no factual allegations that plaintiffs knowingly waived a lciiown right (sce Jc$inziZ Guru,+ Corp. v Presbyterian Hmp. in City o f N I:,61 NY2d 442,446 [l 9841). Therefore, this court struck the doctrine ofwaiver in her sixth affirmative defense, as it did the doctrine of estoppel. This court also struck her seventh affirmative defense invoking the doctrine of laches. The 3 [* 5] Court in Mutter of B~rr.uhash NY2d 76, 81 [1972]), cxplained: Laches is defhcd as such (31 neglcct or omission to assert a right as, taken in conjunction with the lapse of lime, rnorc or lcss great, and other circumstances causing prejudice to an adverse party, opcrates as a bar in a court of cquity. I heessential clement of this equitablc deiknsc is delay prejudicial to the opposing party. (citations oinittcd.) Therc are no factual allegations that thcre was c2 change in circiiinstanccs that would make it inequitable to grant the relief sought by plaintiffs. Prejudice may be cstablished by a showing olinjury, change of position, loss of evidence, or some oilier disadvantage resulting from the delay (see Sarutogu C ounty Chumber of Commerce v Pataki, 100 NY2d 801, 8 16 [2003]). A conclusory allegation of prejudice is inadequate (Macon v Arnlie Realty C h , 207 AD2d 268, 27 1 [lstDcpt 19941). Mitchell has not deinoiistrdted prejudice (see Amsterdum Sav.Bank v Cily View Mgt. Curp., 45 NY2d 854, 855-856 [I 9781). This court did iiot strike her eighth affirmative defense based on the statute of limitations. Mitchell claims the statute of limitations as an afflrmative defense, noting that CPLR 2 13-a provides for a four year statute of limitations for relit overcharges (see Mutfer qf Gilman v New York State Div. of Hou.c & C o ~ ~ z ~ ~ i t y 99 NY2d 144, 149 [2002]; A4uttr.r of Nirr Ashki Jerruhi Renewal, Community v New York City Lop Bd,, 80 AD3d 323, 329 [IbfDcpt 2010]). 1 0 the extent that Mitchell can show that plaintiffs complaint a1leges overcharges beyond the four year statute of limitations, Mitchell has a valid affirmative defense. A party moving for summLuyjudgmeiitmust demonstrate his, her, or its entitlement thercto as a matter of law, pursuant to CPLR 3212 (b) (LSmallLsAJllndus., lnc., 10 NY3d 733,735 [2008]; v ISurnitomoMifszii Banking C orp. 17 Credit Suisse, 89 AD3d 56 1, 563 [ l Dept 201 11). To defeat summLuy judgment, the party opposing the motion must show that there is a material question(s) of fact that requires a trial (Ferluckaj v Goldman Sachs & Co., 12 NY3d 3 16,320 120091; Zuckermun 4 [* 6] v City Of New Yurk, 49 NY2d 557, 562 [1980]; CitiFinancial C o. (DE) v McKinney, 27 AD3d 224, 226 [ l Dcpt 20061). A tenant may charge a subtenant tcii pcrcenl abovc the legal rent where the apartment is furnished (BLF Realty Holdinl: Curp. 1 Kusher, 294 AD2d 87, 90-91 11 Dept 20021). Plaintiff s have dciiioiistrated that Mitchell charged thcm a rent inorc than ten pcrcent above the legal rcnt (Rent Stabilization Code $2526.1). Thus, plaintiffs are entitled to summary judgment as to liability on their second cause of action. There are questions of fact as to the sum that plaintiffs wcre overcharged. Plaintiffs have not made a prima facie showing of entitlement to legal fees. Plaintiffs haw not shown a contract, statute, or rule that would entitle them to collect attorney s fees (see Chupel v Mitchell, 84 NY2d 345, 348-349 [1994]; Camphell v C itihank, 302 AD2d 150, 154 [lstDept 2003 1). rhus, by separate October 19,2012 decision and order, plaintiffs inoiioii was granted to the extent of striking Mitchell s sccond, third, fourth, fifth, sixth, and seventh affirmative defenses, and awarding plaintiffs summary judgment as to liability against Mitchell on plaintiffs second cause of action. Upon a search of the record, Mitchell was awarded the same declaration as afforded the other defendants. Dated: New York, New York October 23,20 12 ~ # + i Y o ~RICHARD F. BRAUN, J.S.C. 5

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