72A Realty Assoc., L.P. v Mercado

[*1] 72A Realty Assoc., L.P. v Mercado 2014 NY Slip Op 24397 Decided on December 17, 2014 Appellate Term, First 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 December 17, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.
571039/13

72A Realty Associates, L.P., f/k/a 72A Realty Associates, Petitioner-Landlord-Appellant,

against

G. Anthony Mercado, a/k/a Gonzalo A. Mercado, Respondent-Tenant-Cross- Appellant, -and- Maritza Mercado, Respondent-Undertenant-Cross- Appellant, -and- "John Doe" and/or "Jane Doe," Respondents-Undertenants.

Petitioner-landlord appeals from those portions of an order of the Civil Court of the City of New York, New York County (Peter M. Wendt, J.), entered September 23, 2013, which, inter alia, denied its cross motion for 1) summary judgment on the nonpayment petition, 2) summary judgment dismissal of respondents' affirmative defense of laches and their counterclaims for breach of the warranty of habitability and attorney's fees incurred in prior litigation between the parties, and 3) issuance of a rent deposit order pursuant to RPAPL 745. Tenant and respondent Maritza Mercado cross-appeal from so much of the aforesaid order as denied their motion for summary judgment dismissing the petition and dismissed "without prejudice" their counterclaim for attorney's fees incurred in the prior proceeding.

Per Curiam.

Order (Peter M. Wendt, J.), entered September 23, 2013, modified by 1) granting landlord's motion for summary judgment to the extent of dismissing respondents' affirmative defense and counterclaim for breach of the warranty of habitability and their counterclaim for attorney's fees incurred in a prior holdover proceeding commenced by landlord, 2) granting [*2]landlord's motion for summary judgment on the nonpayment petition to the extent that tenant's indebtedness for the rent arrears prayed for is deemed a fact established for all purposes in the proceeding pursuant to CPLR 3212(g), and 3) remanding the matter to Civil Court for issuance of an appropriate rent deposit order pursuant to RPAPL 745(2).

This holdover summary proceeding, commenced in January 2013, seeks to recover over $52,000 in rent arrears dating back to July 2007. So far as appears from the summary judgment record, the rent deficiency stems from the parties' long-standing dispute over the entitlement of tenant's adult daughter, respondent Maritza Mercado (Maritza), to assume or succeed to the tenant's stabilized leasehold, and more specifically from tenant's insistence that landlord accept rent directly from Maritza and landlord's refusal to do so.

The only legal defense to landlord's rent claim set forth in the joint answer filed by tenant and Maritza, viz., petitioner-landlord's claimed breach of the statutory implied warranty of habitability (see Real Property Law § 235-b), should have been dismissed on summary judgment. Significantly, tenant made no mention in his affidavit below of any rent impairing conditions. And while the affidavit submitted by Maritza did identify several alleged apartment defects, no showing was made that she or anyone else ever notified the landlord or its agents of any such conditions; indeed, Maritza readily acknowledged that she intentionally refrained from doing so in order to avoid "caus[ing] more trouble by raising repair issues." The absence of the requisite notice of the alleged apartment defects is fatal to tenant's habitability defense (see Matter of Moskowitz v Jorden, 27 AD3d 305, 306 [2006]). In this posture, and since tenant did not otherwise controvert the existence or amount of his rent indebtedness, we deem tenant's rent liability established for all purposes in the proceeding (see CPLR 3212[g]). We agree, however, that tenant's equitable defense of laches is not subject to summary disposition. The circumstances and reasonableness of landlord's delay in instituting this nonpayment proceeding must be more fully explored at trial before the bona fides of this defense are determined (see City of New York v Betancourt, 79 Misc 2d 907 [1974]).

We briefly address two ancillary issues. The court's dismissal of tenant's counterclaim for attorney's fees incurred in defense of a prior holdover proceeding commenced by landlord should have been "with prejudice," where landlord was awarded a possessory judgment on its earlier holdover petition, albeit a judgment which was permanently stayed (see Central Park W. Realty LLC v Stocker, 1 Misc 3d 137[A], 2004 NY Slip Op 50058[U][App Term, 1st Dept 2004]). Finally, landlord's unopposed motion for issuance of a rent deposit order should have been granted, where more than 30 days have elapsed since the parties' first court appearance herein and, so far as known, no adjournments were requested by landlord (see RPAPL 745[2][a]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: December 17, 2014