46 E. 91st St. Assoc., LLC v Bogoch

46 E. 91st St. Assoc., LLC v Bogoch 2009 NY Slip Op 29173 [23 Misc 3d 36] Accepted for Miscellaneous Reports Publication AT1 Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Tuesday, July 7, 2009

[*1] 46 East 91st Street Associates, LLC, Respondent,
v
Samuel Bogoch et al., Appellants.

Supreme Court, Appellate Term, First Department, April 27, 2009

APPEARANCES OF COUNSEL

Vernon & Ginsburg, LLP, New York City (Mel B. Ginsburg of counsel), and Pryor Cashman LLP, New York City (Eric D. Sherman and Luisa K. Hagemeier of counsel), for appellants. Morris K. Mitrani, P.C., New York City, for respondent.

{**23 Misc 3d at 37} OPINION OF THE COURT

Per Curiam.

Order, dated November 15, 2007, insofar as appealed from, reversed, without costs, that branch of tenants' motion seeking leave to amend their answer to assert a defense founded upon Multiple Dwelling Law § 302-a is granted, and the proposed amended answer is deemed served, upon condition that tenants, within 10 days after service of a copy of this order with notice of entry, deposit $53,076.60 with the Clerk of the Civil Court, an amount representing the rent allegedly due landlord at the time of tenants' motion. Upon tenants' failure to comply with this condition, the order appealed from is affirmed, without costs.

Leave to amend pleadings is to be freely given, absent a showing of prejudice or surprise (see CPLR 3025 [b]; Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]). Here, there was no showing of prejudice or surprise resulting from the elderly tenants' delay in formally seeking leave to amend their pro se answer to assert the "fundamental" defense relating to the applicability of the rent forfeiture provisions of Multiple Dwelling Law § 302-a (see Cretans Assn. 'Omonoia' Inc. v Perkis, 4 Misc 3d 136[A], 2004 NY Slip Op 50830[U] [2004]). Notably, tenants properly and timely asserted the statutory defense in a companion nonpayment proceeding subsequently commenced by landlord to recover possession of another apartment leased by tenants in the same building, and indicated their intention to assert the statutory defense in this proceeding by way of an "Annex to Answer" served and filed, albeit without authorization, within one month of the commencement of this proceeding. Nor were tenants' moving papers unreliable or insufficient to support the defense (see Peach Parking Corp. v 346 W. 40th St., LLC, 52 AD3d 260 [2008]). We thus exercise our discretion and grant tenants' amendment request, upon{**23 Misc 3d at 38} their compliance with the rent deposit requirement of Multiple Dwelling Law § 302-a (3) (c), as indicated above.

McKeon, P.J., and Heitler, J., concur.