157 Broadway Assoc., LLC v Edouard

[*1] 157 Broadway Assoc., LLC v Edouard 2010 NY Slip Op 51545(U) [28 Misc 3d 140(A)] Decided on September 1, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 1, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, J.
570386/09

157 Broadway Associates, LLC, Petitioner-Landlord-Appellant,

against

Chantale Edouard, Respondent-Tenant-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Joseph E. Capella, J.), dated April 20, 2009, which denied its motion to strike tenant's first, second and sixth affirmative defenses and for use and occupancy in a nonpayment summary proceeding.

Per Curiam.

Order (Joseph E. Capella, J.), dated April 20, 2009, modified by granting landlord's motion to the extent of striking tenant's first and second affirmative defenses; as modified, order affirmed, without costs.

Landlord's motion insofar as it sought dismissal of tenant's first and second affirmative defenses pleading lack of personal jurisdiction should have been granted. Tenant's conclusory assertions that service of the rent demand and notice of petition and petition did not comply with RPAPL § 735 were insufficient to warrant a traverse (see Manhattan Sav. Bank v Kohen, 231 AD2d 499 [1996], lv denied 91 NY2d 802 [1997]; cf. NYCTL 1998-1 Trust & Bank of NY v Rabinowitz, 7 AD3d 459 [2004]). We decline to strike tenant's sixth affirmative defense, asserting a rent overcharge, since tenant represented at oral argument of this appeal that she would withdraw her pending rent overcharge complaint before the Division of Housing and Community Renewal, thereby obviating landlord's argument that the sixth affirmative defense is barred by the doctrine of primary jurisdiction. In the event tenant has not withdrawn her agency overcharge complaint prior to trial, landlord may renew its motion to dismiss the sixth affirmative defense in Civil Court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 01, 2010