744 E. 215 LLC v Simmonds
Annotate this CaseDecided on December 4, 2019
Civil Court of the City of New York, Bronx County
744 E. 215 LLC, Petitioner-Landlord,
against
Jomo Simmonds et al., Respondents-Occupants.
033668/2019
Jayson Blau & Associates
Attorneys for Petitioner
171 East 163rd Street
Bronx, New York 10451
Bronx Legal Services
Attorneys for Respondent Simmonds
349 East 149th Street, 10th Floor
Bronx, New York 10451
Shorab Ibrahim, J.
Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.
Papers Numbered
Notice of Motion with Affirmation Annexed [With Exhibits A-B] 1
Affirmation in Opposition [With Exhibits A-B] 2
Reply Affirmation 3
After oral argument held on November 21, 2019, and upon the foregoing cited papers, the decision and order on this motion is as follows:
FACTUAL AND PROCEDURAL HISTORY
This is a post-foreclosure licensee holdover commenced by Petitioner 744 E. 215 LLC ("Petitioner") seeking possession of the premises known as and located at 744 East 215th Street, Bronx, New York 10467 (the "subject premises"), a two-family dwelling.[FN1]
This proceeding was previously discontinued against Respondent Olivia Wilson on or about October 1, 2019.[FN2]
On October 18, 2019, this court denied the motion to dismiss of Respondent Jomo [*2]Simmonds,[FN3] but set the matter down for a traverse hearing on November 21, 2019.[FN4]
Respondent interposed an answer on or about November 4, 2019 alleging two affirmative defenses: lack of personal jurisdiction, due to improper service of the notice of petition and petition, and violation of the warranty of habitability, alleging no gas and no electricity in the subject premises.[FN5]
Respondent also alleged three counterclaims: the first counterclaim, breach of the warranty of habitability, is also his second affirmative defense. The second counterclaim seeks an order to correct all Housing Maintenance Code Violations at the subject premises and the third counterclaim seeks attorneys' fees pursuant to RPL §234.[FN6]
Rather than going forward with the traverse hearing on November 21, 2019, petitioner instead interposed a motion to strike respondent's first affirmative defense, lack of personal jurisdiction, the second counterclaim for an order to correct, and the third counterclaim seeking attorneys' fees.
On November 21, 2019, this Court heard oral argument on petitioner's application to strike and decision was reserved.
Petitioner moves to strike the first affirmative defense on the grounds that respondent waived any objection to jurisdiction by interposing unrelated counterclaims for an order to correct and attorneys' fees. Petitioner seeks to strike the second counterclaim for an order to correct pursuant to CPLR § 3211(a)(4), as respondent has already obtained an order to correct against petitioner months prior. Finally, petitioner moves to strike the third counterclaim for attorneys' fees on the ground that there is no lease or landlord-tenant relationship between petitioner and respondent and therefore no right for respondent to seek legal fees.
DISCUSSION
Lack of Jurisdiction
It is well settled that, while interposing a related counterclaim does not waive jurisdictional defenses, "asserting an unrelated counterclaim does waive such defense because defendant is taking affirmative advantage of the court's jurisdiction." (Textile Technology Exch., Inc. v Davis, 81 NY2d 56, 58-59, 595 NYS2d 729, 730 [1993], citing Prezioso v Demchuk, 127 AD2d 576, 511 NYS2d 375, 376 [2nd Dept 1987], lv dismissed 70 NY2d 1002; Liebling v Yankwitt, 109 AD2d 780, 781, 486 NYS2d 292, 293 [2nd Dept 1985]).
Furthermore, the law is clear that "a counterclaim will only be 'related' for these purposes when such counterclaim could potentially be barred under principles of collateral estoppel—where the parties or their privies are the same and where the issues in the plaintiffs' claims are potentially identical and decisive of issues raised in the counterclaims," (Textile Technology Exch., Inc. v Davis, 81 NY2d at 59, citing Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 486, 414 N.Y.S.2d 308, 311 [1979]), as the "spectre of collateral estoppel often requires a defendant to bring certain counterclaims in order to avoid the risk of later preclusion (Textile Technology Exch., Inc. v Davis, 81 NY2d at 59).
Here, petitioner argues that respondent has waived his jurisdictional defense by interposing unrelated counterclaims seeking an order to correct and attorneys' fees.
By Answer dated November 4, 2019, respondent seeks an order to correct in this proceeding "all Housing Code violations at the subject premises."[FN7] However, respondent already sought, and obtained, an order to correct open Housing Code violations by Order to Show Cause ("OSC") dated August 21, 2019 in a related housing part ("HP") proceeding commenced by respondent against petitioner, Jomo Simmonds v 744 E. 215 LLC, L & T Index No. 036436/2019.[FN8]
As respondent now seeks the correction of violations for failure to provide gas or electricity, conditions previously included in the OSC filed in the HP part,[FN9] it is clear that respondent's second counterclaim for an order to correct is an unrelated counterclaim as it cannot be said that respondent would be precluded under collateral estoppel from litigating his claim in another proceeding.
There is no "risk of later preclusion" (Textile Technology Exch., Inc. v Davis, 81 NY2d at 59) of respondent's claim where such claim was brought months before the counterclaim in this proceeding. Indeed, respondent has not only already commenced a proceeding to correct such outstanding violations, but the court takes judicial notice of the fact that respondent obtained such order to correct in the HP proceeding months prior, on or about September 20, 2019.
Furthermore, respondent is currently litigating his motion to compel petitioner's non-compliance with the order to correct so that he would plainly not be precluded from litigating any aspect of his claims regarding an order to correct even if he had not interposed the counterclaim herein.
Given the foregoing, respondent has waived his personal jurisdiction defense by interposing an unrelated counterclaim seeking an order to correct. A contrary result is not warranted by the caselaw relied upon by respondent. In Kuper v Bravo, 61 Misc 3d 274, 82 NYS3d 805 [Civ Ct, Queens County 2018], the court held that the counterclaim seeking an order to correct did not waive personal jurisdiction because "should the respondents fail to raise them at this point, as Professor Siegel notes, they would likely find themselves barred from raising these issues in a later suit due to collateral estoppel. (Siegel, NY Prac § 224 at 372 [4th ed 2005].) As it is clear that respondent's affirmative defense requires him to also bring the counterclaims or risk having the issue precluded from future trials, the jurisdictional defense is not considered waived." (Kuper v Bravo, 61 Misc 3d at 279).
Alternatively, respondent waived his jurisdictional defense by interposing the counterclaim for attorneys' fees.
The holding in Furnished Dwellings LLC v Households Headed by Women, 62 Misc 3d 864, 866, 92 NYS3d 542, 544 (Civ Ct, New York County 2018) is clear and instructive:
A claim for attorney's fees pursuant to Real Property Law § 234 need not be sought as a counterclaim; the claim may be asserted independently. In pertinent part Real Property Law § 234 provides that such fees "may be recovered as provided by law in an action commenced against the landlord or by way of counterclaim in any action or summary [*3]proceeding commenced by the landlord against the tenant." As a result, respondents' claim for attorney's fees is "unrelated" to the defense of the instant proceeding, i.e., need not be asserted here to avoid "the spectre of collateral estoppel . . . [and] the risk of later preclusion." (Textile Tech. Exch. v Davis, 81 NY2d 56, 59, 611 NE2d 768, 595 NYS2d 729 [1993] [citations omitted]) (emphasis added)).More recently, this court has once again upheld the principle that "[b]y interposing a claim for attorneys' fees," a respondent "has asserted an unrelated counterclaim." (1691 Fulton Avenue Associates LP v. Stacy Lynn Johnson, Index No. 53393/2018 at 5, unpublished opinion [Civ Ct, Bronx County, Nov. 22, 2019]).
The court in Johnson, citing to Caracaus v Conifer Cent. Sq. Assoc., 158 AD3d 63, 68 NYS3d 225 [4th Dept. 2017], went on to further find that if the respondent had not interposed a counterclaim for attorneys' fees, she would not have been barred from commencing a subsequent action against her landlord seeking same if she successfully defended the holdover proceeding. (See 1691 Fulton Avenue Associates LP v. Stacy Lynn Johnson, Index No. 53393/2018 at 6.)
However, because the respondent did interpose such unrelated counterclaim, "Respondent's personal jurisdiction concerning service of the Notice of Petition and Petition are hereby stricken." (1691 Fulton Avenue Associates LP v. Stacy Lynn Johnson, Index No. 53393/2018 at 6).
Similarly, respondent here would not have been barred from commencing a separate action for attorneys' fees against petitioner upon his successful defense of this proceeding. As such, the attorneys' fees counterclaim is unrelated to this holdover, and, in interposing such unrelated counterclaim, respondent has waived his jurisdictional defense.
Consequently, petitioner's motion to strike respondent's first affirmative defense is granted.
Order to Correct
Petitioner alleges that respondent's second counterclaim for an order to correct must be dismissed pursuant to CPLR §3211(a)(4) as respondent has already commenced another proceeding against petitioner seeking the same relief.
The court has discretion to dismiss a claim pursuant to CPLR §3211(a)(4) where there is a prior action pending between the same parties, for the same cause of action and seeking the same relief. (see MLF3 Airitan LLC v 2338 Second Ave. Mazal LLC, 55 Misc 3d 241, 245, 45 NYS3d 759, 765 [Sup Ct, New York County 2016]; James v. Bernhard, 34 Misc 3d 1242(A), 2012 NY Slip Op 50507(U) [Sup Ct, New York County 2012]).
Furthermore, dismissal is warranted where "both suits arise out of the same subject matter or series of alleged wrongs," (MLF3 Airitan LLC v 2338 Second Ave. Mazal LLC, 55 Misc 3d at 245, quoting Cherico, Cherico & Assoc. v Midollo, 67 AD3d 622, 886 NYS2d 914 [2d Dept 2009]) and "a determination in the [previously filed] action will necessarily determine and dispose of all the issues in both actions. . . ." (James v Bernhard, 34 Misc 3d at 1242A, quoting Guilden v Baldwin Securities Corp., 189 AD2d 716, 592 N.Y.S.2d 725, 726 [1st Dept 1993]).
Here, respondent commenced an HP action against petitioner on or about August 21, 2019,[FN10] several months prior to interposing November 4, 2019 answer in this proceeding seeking [*4]an order to correct.[FN11]
The HP action sought correction of Housing Maintenance Code violations in the subject premises and alleged, among other conditions, that there was no gas or electricity in the subject premises.[FN12] The second counterclaim here seeks the same relief: an order to correct the Housing Maintenance Code violations in the subject premises, specifically alleging no gas or electricity in the premises.[FN13]
The relief sought in the HP action and the within counterclaim are identical, petitioner and respondent are parties to both proceedings, both the HP action and this counterclaim allege the same conditions and the order to correct issued in the HP action on or about September 20, 2019 has determined and disposed of the instant counterclaim.
Given the foregoing, dismissal is warranted pursuant to CPLR §3211(a)(4) and petitioner's motion to strike and dismiss respondent's second counterclaim for an order to correct is therefore granted. (see 2401 Davidson Assocs. v. Rice, 2018 NYLJ LEXIS 3839, at 11 [Civ Ct, Bronx County 2018] ["the counterclaim seeking an order to correct is struck from the answer based on the HP action. Considering Respondents have already commenced the HP action to obtain an order requiring the alleged violation in the apartment to be corrected it is inappropriate for them same relief to be sought in this proceeding."]).
Attorneys' Fees
The 2019 Housing Stability and Tenant Protection Act, ("2019 HSTPA") has made it clear that regardless of any statute or lease provision allowing for recovery of attorneys' fees in a summary proceeding, parties may no longer seek such fees in housing court and are relegated to commencing a plenary action for same. Indeed, Part M of the 2019 HSTPA states, in relevant part, as follows:
§ 11. The real property actions and proceedings law is amended by adding a new section 702 to read as follows:§ 702. Rent in a residential dwelling. In a proceeding relating to a residential dwelling or housing accommodation, the term "rent" shall mean the monthly or weekly amount charged in consideration for the use and occupation of a dwelling pursuant to a written or oral rental agreement. No fees, charges or penalties other than rent may be sought in a summary proceeding pursuant to this article, notwithstanding any language to the contrary in any lease or rental agreement. [emphasis added].As this proceeding was commenced in August 2019, after the 2019 HSTPA went into effect, the new RPAPL §702 applies. Therefore, petitioner's motion to strike respondent's attorney's fees counterclaim is granted to the extent that such counterclaim is severed without prejudice for a plenary action. To the extent that petitioner also seeks attorneys' fees in the petition, the court also sua sponte severs such claim without prejudice for a plenary action. The court does not pass on the merit of either petitioner's claim or respondent's counterclaim for attorneys' fees or whether either party would have a right to same given that there is no lease between the parties granting such right to recover fees.
CONCLUSION
Based on the foregoing, it is So Ordered, that petitioner's motion to strike respondent's jurisdictional defense and the counterclaim for an order to correct is granted. Petitioner's motion to strike respondent's attorneys' fees counterclaim is granted to the extent of severing such counterclaim without prejudice and the court sua sponte also severs petitioner's claim for attorneys' fees without prejudice. This matter is adjourned to December 20, 2019, 9:30 A.M, Part F, Room 320, for trial.
Dated: December 4, 2019
Bronx, New York
HON. SHORAB IBRAHIM
Judge, Housing Part Footnotes
Footnote 1: See Par. 3-8 of Notice to Quit; see Par. 6 of Petition.
Footnote 2: See Stipulation dated October 1, 2019.
Footnote 3: Jomo Simmonds is the only remaining appearing respondent and any reference to "respondent" herein shall refer to Jomo Simmonds.
Footnote 4: See Decision and Order dated October 18, 2019.
Footnote 5: See respondent's Answer at Pgs. 1-2.
Footnote 6: See respondent's Answer at Pgs., 2-3.
Footnote 7: See respondent's Answer at Pg. 2.
Footnote 8: See Ex. B to petitioner's motion.
Footnote 9: See Ex. B to petitioner's motion; see also respondent's Answer at Pg. 2.
Footnote 10: See Ex. B to petitioner's motion.
Footnote 11: See respondent's Answer at Pg. 2-3.
Footnote 12: See Ex. B to petitioner's motion.
Footnote 13: See respondent's Answer at Pg. 2-3.
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