Masuda v Mazzei

[*1] Masuda v Mazzei 2021 NY Slip Op 50683(U) Decided on July 21, 2021 Supreme Court, New York County Lebovits, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2021
Supreme Court, New York County

Masami Masuda, Diane Tyler, Banyan Masuda, and Kelly Shaw, Plaintiffs,

against

Marino Mazzei, Anna Aulisa, Anna Aulisa as Executor for the Estate of Domenico Aulisa and as Trustee for the Credit Shelter Trust, and Bonafide Realty, LLC, Defendants.



157469/2014



The Beltas Law Firm, New York, New York (Brandy A. Beltas of counsel), and Law Offices of Fred L. Seeman, New York, NY (Fred L. Seeman of counsel), for plaintiff Masami Masuda.

Wenig Saltiel LLP, New York, New York (Meryl L. Wenig and Sehzad Sooklall of counsel), for defendants.
Gerald Lebovits, J.

The following e-filed documents, listed by NYSCEF document number (Motion 006) 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 300, 302, 303 were read on this motion to/for SUMMARY JUDGMENT.

Plaintiffs are four rent-stabilized tenants of 75 Hudson Street in Manhattan. They brought this action in 2014 against several defendants: Marino Mazzei, Anna Aulisa, Anna Aulisa as executor of the estate of Domenico Aulisa and as trustee for the Credit Shelter Trust, and Bonafide Realty, LLC (collectively, Landlord). Landlord counterclaimed against the tenant of Apartment 1, Plaintiff Masami Masuda, claiming that Masuda's alterations to the building constituted a nuisance. Landlord now moves in motion sequence 006 for partial summary judgment on its counterclaims under CPLR 3212 and to strike seven of Masuda's affirmative defenses under CPLR 3211 (b). Landlord seeks a writ of assistance to evict Masuda, a hearing to determine the damages caused by Masuda's alterations to Apartment 1, and $3,162.63 for unpaid rent. The motion is granted in part and denied in part.

BACKGROUND

Masami Masuda began residing in Apartment 1 at 75 Hudson Street in Manhattan in [*2]1973. (See NYSCEF No. 254 at ¶ 11.) Landlord alleges that Masuda, a licensed master plumber, installed a fresh-air pipe without a fusible link. (See NYSCEF No. 217 at ¶ 22.) Masuda admitted at deposition that he installed a Modine heating unit; branched off the main gas pipe to supply the Modine heating unit and a gas clothes dryer; performed a soap bubble pressure test on the gas piping; removed sheetrock from the boiler area; modified the heating unit chimney; and altered the flue venting. (See NYSCEF No. 254 at ¶¶ 105, 126, 156, 177, 200, 211; NYSCEF No. 230 at 119.) Masuda also admitted that he did not obtain the required Department of Buildings (DOB) permits for his alterations. (See id. at ¶ 216.) The DOB issued two violations in 2014, summons No.32074517N and #32074516L; Landlord alleges that these violations were issued due to Masuda's alterations. (See NYSCEF No. 217 at ¶ 10.)

In July 2014, the tenants of 75 Hudson Street filed this action against Landlord in Supreme Court. Plaintiffs sought, among other things, injunctions restraining Landlord from harassing plaintiffs and from installing a central boiler. (See NYSCEF No. 1 at ¶¶ 56, 62.) Landlord counterclaimed. (See NYSCEF No. 31.) Due to disputes over Masuda's responses during a deposition, this court ordered Masuda to appear for examination before a Special Master at JAMS (Justice Alan Hurkin-Torres, ret.). (See NYSCEF No. 189.) Landlord's deposition of Masuda consisted of 12 separate examinations that cumulatively lasted for 70 hours. (See NYSCEF No. 254 at ¶ 55.)

Landlord now moves under CPLR 3212 for partial summary judgment, seeking a writ of assistance, a hearing on damages, and a judgment for unpaid rent. Landlord also moves under CPLR 3211 (b) to strike Masuda's first, second, third, fourth, fifth, sixth, and ninth affirmative defenses. Landlord's motion for partial summary judgment is denied. Landlord's motion to strike is granted with respect to Masuda's first and fourth affirmative defenses, and denied with respect to Masuda's other defenses.

DISCUSSION

A court grants summary judgment under CPLR 3212 if the movant is "entitle[d] to judgment as a matter of law." (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].) The moving party on a motion for summary judgment must first "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact." (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].) If the movant meets that burden, the non-movant must provide evidence establishing that a material dispute of fact exists. (See Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49 [2015].) The court views the facts in the light most favorable to the nonmovants. (See Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 340 [2011].) The court may not grant summary judgment if there is any doubt whether there is a material dispute of fact. (See Millerton Agway Coop., Inc. v Briarcliff Farms, Inc., 17 NY2d 57, 61 [1966].)

I. Landlord's Request for a Writ of Assistance Against Masuda

Defendant Landlord argues that rent-stabilized Plaintiff Masuda's alterations to Apartment 1 constitute a nuisance. A landlord may evict rent-stabilized tenants who engage in nuisance under New York City Rent Stabilization Code (9 NYCRR) § 2524.3 (b). Nuisance is conduct that substantially impairs another person's use and enjoyment of land. (Domen Holding Co. v Aranovich, 1 NY3d 117, 123 [2003].) The conduct must be continuous or recurring and result in lasting injury. (Frank v Park Summit Realty Corp., 175 AD2d 33, 35 [1st Dept 1991].) A tenant's alteration to property is a lasting injury if it cannot be easily removed without substantial cost or labor. (Wall Nut Prods., Inc. v Radar Cent. Corp., 20 AD2d 125, 126-127 [1st Dept 1963].) Lasting aesthetic alterations are a nuisance even if they improve the value of the property. (See Freehold Inv. v Richstone, 34 NY2d 612, 612 [1974].) Alterations that create a risk to the health and safety are a nuisance. (Stratton Coop. v Fener, 211 AD2d 559, 559 [1st Dept 1995].) Tenants may, however, make necessary repairs without facing eviction, and a landlord may not evict a tenant who makes repairs that do not meet the New York City Building Code (Code) requirements if the tenant replaced work that was already not Code compliant. (Rumiche Corp. v Eisenreich, 40 NY2d 174, 180 [1976].)

Landlord bases its nuisance claim on a series of alterations Masuda made to Apartment 1, Masuda's failure to get permits for those alterations, and DOB violations that allegedly resulted from Masuda's alterations. This court concludes that Landlord is not entitled to summary judgment based on these grounds.

Landlord claims that Masuda removed the fusible link from the fresh-air pipe. Masuda denies this allegation. Masuda's wife states that she witnessed Landlord installing the fresh-air pipe on the boiler. (See NYSCEF No. 260 at ¶ 11.) The DOB inspector, William Frank, testified that the boilers on multiple floors of the building are improperly piped and lack important controls. (See NYSCEF Doc. 273 at 36.) Viewing the facts in the light most favorable to Masuda, it is plausible that Landlord installed all the boilers without a fusible link. Contrary to Landlord's assertion, Masuda did not admit to removing the fusible link during deposition. Instead, Masuda acknowledged that he removed a screw from the boiler's grill. (See NYSCEF No. 230 at 170-171.) Masuda claims that removing the screw has no effect on the fire safety of the boiler; Landlord does not rebut this claim. (See id.) The court does not have a basis to find, as a matter of law, that Masuda removed the fusible link from the fresh-air pipe or that removing a screw from the grill created a risk to health and safety.

Landlord also alleges that Masuda's Modine heating unit cannot be easily removed from Apartment 1. Masuda admits to installing a Modine heating unit despite the unit's being illegal in residential dwellings. (See NYSCEF No. 254 at ¶ 108.) The heating unit's installation is a lasting injury to the property if its removal is cost- or labor-intensive. (See Rumiche Corp., 40 NY2d at 180.) Masuda claims that the heating unit can be removed in 30 minutes and will result in two small holes that can be inexpensively filled and painted. (See NYSCEF No. 254 at ¶ 106.) Landlord's assertion that removing the heating unit requires significant cost and labor creates a material dispute of fact that cannot be resolved on summary judgment. Further, the parties dispute when Landlord discovered the heating unit. If, as Masuda alleges, Landlord was aware of the heating unit decades ago and failed to object, Landlord may have waived its right to evict Masuda for installing the heating unit. (See Haberman v Hawkins, 170 AD2d 377, 378 [1st Dept 1991].)

Landlord argues that Masuda's other alterations to the premises pose a serious risk to health and safety. Masuda, however, claims that his alterations are Code compliant and are not dangerous. Masuda admits he installed baseboard heating in Apartment 1, but claims that the additional gas piping he installed to serve the baseboard heating does not exceed lawful limits. (See id. at ¶ 199.) Likewise, Masuda admits that he branched off the gas piping to install the Modine heating unit and gas clothes dryer. (See NYSCEF No. 226 at 12, 66.) Landlord alleges that these alterations compromise the structural integrity of the gas piping in the building, whereas Masuda claims that inserting small extension pipes is safe. Masuda also claims that these alterations were necessary to make the apartment habitable and that Landlord saw and did not object to these changes. (See NYSCEF No. 254 at ¶ 201.) These factual disputes must be resolved at trial.

Landlord claims that Masuda did not perform the appropriate gas test after he altered the gas piping. It is undisputed that Masuda performed a soap bubble test to check for leaks when he inserted additional gas piping. (See NYSCEF No. 226 at 59.) Masuda claims that he had previously performed a compression test on the piping, so a soap bubble test on the new connections was adequate. (See NYSCEF No. 254 at ¶ 126.) Landlord argues that a compression air test should have been conducted and that a soap bubble test was unsafe. (See NYSCEF No. 217 at ¶ 22.) Landlord cites New York City Plumbing Code § 107.4 in support of its position, but this provision does not provide that compression air tests are always required or that soap bubble tests are inappropriate. Again, there is a material dispute of fact regarding whether Masuda's gas test was sufficient.

Landlord also argues that Masuda's cutting of sheetrock from around the boiler created a safety risk. Masuda alleges that he needed to remove part of the sheetrock from the boiler area to investigate a potentially lethal carbon-monoxide leak. (See NYSCEF No. 254 at ¶¶ 154-156.) [*3]Masuda states that he did not repair the sheetrock because a fireproof wall surrounding the boiler served the same purpose as the sheetrock. Whether there was a fireproof wall behind the sheetrock is immaterial; a tenant may not remove safety features from a building even if additional ones are in place. In any case, Landlord's pictures show that at least some sides of the boiler are not enclosed by a fireproof wall. (See NYSCEF No. 234.) However, Masuda also argues that the sheetrock is not fire rated. Masuda claims that the sheetrock that he cut is only three-eighths of an inch thick; sheetrock must be at least five-eighths of an inch thick to be fire rated. (See NYSCEF No. 254 at ¶ 165.) If the sheetrock does not offer safety protection against fires, its removal would not be a nuisance. (See Rumiche Corp., 40 NY2d at 181.) Whether the sheetrock is fire-rated is a factual question that the parties dispute. This dispute prevents summary judgment.

Landlord claims that Masuda's alteration of the chimney unit warrants his eviction as a matter of law. The court disagrees. Masuda admits to installing a stainless-steel chimney pipe in place of the high-temperature plastic vent (HTPV) chimney pipe. (See NYSCEF No. 254 at 43-45.) Landlord argues that the Code prohibits stainless-steel chimney pipes, but New York City Fuel Gas Code § 503.10.2.3 lists "stainless steel sheet not less than 0.012 inch (0.31 mm) thick" as an acceptable material. The record does not establish as a matter of law whether the particular pipe that Masuda installed complies with that provision of the Fuel Gas Code.

Moreover, even if the stainless-steel chimney pipe were not Code compliant, a dispute of fact exists about whether the pre-replacement chimney unit was itself dangerous due to Landlord's neglect. Masuda contends that the HTPV chimney pipe that he replaced in 2013 "had been recalled over two decades" earlier. (NYSCEF No. 254 at ¶ 181.) To support this contention, Masuda has submitted what appears to be a 2009 press release from the federal Consumer Product Safety Commission, discussing a recall of two specified HTPV pipe systems as prone to carbon-monoxide leaks, and "urging home owners who have not yet responded to the previously-announced 1998 recall, to do so immediately." (NYSCEF No. 284 at 1.) In Rumiche (40 NY2d at 181), the Court of Appeals held that a landlord could not evict a rent-stabilized tenant for repairing a falling ceiling with non-fire-rated sheetrock. Although the tenant's alteration violated the New York City Fire Code, the Court concluded that the landlord had not proven that the alteration was a lasting injury to the premises. The landlord provided no evidence "that the thickness of the falling ceiling . . . was any greater than" that of the new ceiling. (Id.) If the falling ceiling was not fire-rated, then the tenant had not inflicted a lasting injury by replacing it with another non-fire-rated ceiling. Here, Landlord does not address Masuda's contention about the assertedly dangerous character of the pre-replacement chimney pipe. The court concludes that this contention, supported by what appears to be an official federal-government press release, suffices at least to raise a fact question about whether Masuda's replacement of the chimney pipe constitutes a lasting injury under Rumiche.[FN1]

Landlord cites caselaw where the Appellate Division has upheld the eviction of tenants who created safety risks. That caselaw, however, is distinguishable. In Stratton (211 AD2d at 559), the tenant's accumulation of newspapers and debris constituted a nuisance because it created a fire risk. There would have been no fire risk without the tenant's debris. Here, Masuda did not create a new risk—the chimney pipe was already dangerous. In Akos Realty Corp. v Vandemark (157 AD2d 632, 634 [1st Dept 1990]), the tenant was enjoined from occupying the building primarily because the Department of Housing and Community Renewal (DHCR) had declared that the building was uninhabitable due to fire damage. Although the tenant's unsafe [*4]electrical repair work contributed to the Court's decision, the DHCR's determination was the main reason for the injunction. Further, the Court at most affirmed a preliminary injunction against the tenant; whether the landlord could permanently evict the tenant from the building was not before the Court.

Landlord alleges that Masuda altered the boiler's flue venting. Masuda admitted during deposition to replacing the flue venting. (See NYSCEF Doc. 230 at 119.) The DOB inspector noted that other boilers in the building were improperly piped. The fact that other boilers were not Code compliant supports Masuda's claim that Landlord's contractor initially improperly installed the boilers' flue venting. (See NYSCEF Doc. 273 at 36.) Again, under Rumiche (40 NY2d at 181), Masuda's alteration of the flue piping would be immaterial if the boiler was already in hazardous condition. The dispute about the condition of the flue venting before Masuda's alteration precludes summary judgment.

Landlord argues that it is entitled to a writ of assistance because Masuda failed to get DOB permits for his alterations. Masuda alleges that the doctrine of unclean hands bars Landlord from securing a writ of assistance. A party may invoke the unclean-hands defense if the opposing party's immoral or illegal conduct harmed the defendant and is related to the subject of the litigation. (Lowe v Quinn, 27 NY2d 397, 401 [1971].) It is undisputed that Masuda failed to apply for the necessary permits to make alterations to 75 Hudson Street. Masuda claims that the DOB required Landlord to sign permit applications and that Masuda received no reply when he tried to contact Landlord. (See NYSCEF No. 254 at ¶ 216.) Masuda made an unanswered telephone call and sent a letter, that was returned as undelivered, to Landlord. (See id. at ¶ 182.) Masuda contextualizes these efforts by claiming that Landlord has generally been unresponsive to the tenants of 75 Hudson Street during their decades-long relationship. (See id. at ¶ 26.) Whether Masuda made a reasonable effort under the circumstances to contact Landlord and apply for permits is a jury question. Viewing the facts in the light most favorable to Masuda, a jury may find that Landlord's alleged neglect of the building and unresponsiveness to its tenants significantly contributed to Masuda's failure to secure permits. If so, Landlord would be partially responsible for Masuda's illegal conduct. It would, therefore, be inequitable for Landlord to evict Masuda for failing to secure permits.

Landlord also alleges that Masuda's alterations resulted in the DOB's issuing two violations in 2014. Although Masuda's Modine heating unit contributed to these violations, Landlord has not proven that the violations were issued entirely, or even predominantly, due to Masuda's work. Summons #32074517N lists as illegal the Modine heating unit, and it is undisputed that Masuda installed the heating unit. (See NYSCEF No. 231.) But Masuda claims that the other hazards listed in the violation were created by Landlord's contractors. Masuda's contention that Landlord is at least partially responsible for the violations is a plausible inference from the evidence described above and from the many DOB violations that Landlord has received from 1993 to 2021. (See NYSCEF Nos. 261, 262, 275.) If Landlord is partially responsible for the 2014 violations, Landlord's unclean hands preclude it from using the violations as a basis to evict Masuda. Contrary to Landlord's assertion, applying the doctrine of unclean hands would not mean that the court is exempting Masuda or Landlord from complying with the Code. Instead, the doctrine denies Landlord the ability to evict Masuda for engaging in illegal conduct in which Landlord was complicit. Landlord's alleged causal role in Masuda's illegal conduct would preclude Landlord from now benefitting from that conduct.

The parties' respective arguments that their adversary's testimony is not credible are not a sufficient basis simply to disregard that testimony at summary judgment. Landlord argues that Masuda's testimony is self-serving and, therefore, should not defeat the motion. (See NYSCEF No. 298 at ¶ 22.) Masuda argues that the testimony of Landlord's expert is unreliable because the expert reviewed only pictures of the building and transcripts of Masuda's deposition, not the building itself. (See NYSCEF No. 243 at 5.) The credibility of testimony is a quintessential jury question. (Friends of Thayer Lake LLC v Brown, 27 NY3d 1039, 1044 [2016].) Under CPLR 4512, a witness may not be barred from testifying purely for being an interested party in the [*5]litigation. Whether the testimony of Masuda or Landlord's expert is credible (and if so, which is more credible) will be determined at trial.

Landlord has not established at this phase that Masuda's conduct was a nuisance. Material disputes of fact exist about whether Masuda made some of the alterations, whether Masuda's alterations were Code-compliant, whether the premises were Code-compliant before Masuda's alterations, and whether Masuda's alterations caused lasting damage. Further, Landlord's alleged role in Masuda's failure to secure permits and the accrual of DOB violations is relevant to whether the doctrine of unclean hands applies. Accordingly, this court may not award Landlord a writ of assistance.

II. Landlord's Request for Unpaid Rent

Landlord's request for summary judgment against Masuda for $3,162.63 in unpaid rent is also denied. Landlord argues that it is undisputed that Masuda owes rent for June through August 2014 in the amount of $3,162.63. (See NYSCEF No. 217 at ¶ 28.) Masuda requests that the court deny Landlord the money judgment. (See NYSCEF No. 254 at ¶ 3.) Both parties provide only conclusory statements regarding the unpaid rent. Neither party provides any evidence. The court declines to award summary judgment on this limited record.

III. Landlord's Request to Strike Masuda's Affirmative Defenses

The court also denies Landlord's request to strike Masuda's second, third, fifth, sixth, and ninth affirmative defenses. The court grants Landlord's request to strike Masuda's first and fourth affirmative defenses. CPLR 3013 requires that parties plead affirmative defenses with sufficient particularity to give adversaries notice of the material elements of the defenses. A court may strike an affirmative defense under CPLR 3211 (b) if it is a conclusion of law without any supporting facts or it has no merit. (See Kronish Lieb Weiner & Hellman LLP v Tahari, Ltd., 35 AD3d 317, 319 [1st Dept 2006].) The court interprets the pleadings in the most favorable light to the party asserting the defense; the movant has the "heavy burden" of establishing that the defense is meritless as a matter of law. (Granite State Ins. Co. v Transatlantic Reinsurance Co., 132 AD3d 479 [1st Dept 2015].)

Masuda alleges enough facts in his reply to Landlord's counterclaims to preserve the affirmative defenses. Masuda incorporates by reference into the reply to Landlord's counterclaims all the facts contained in his amended complaint. (See NYSCEF No. 35 at ¶ 1.) Further, Masuda admits and denies the specific factual allegations contained in Landlord's amended answer with counterclaims. (See id. at ¶ 2-4.) This provides a sufficient factual basis to understand the connection between Masuda's factual allegations and his affirmative defenses to Landlord's counterclaims. Whether the nexus between Masuda's affirmative defenses and the underlying facts could be expressed more clearly is irrelevant. Masuda alleges enough facts to put Landlord on notice of Masuda's affirmative defenses and the factual basis for them.

The court holds that only Masuda's first and fourth affirmative defenses are without merit as a matter of law. Masuda's first affirmative defense is that Landlord's allegations are without basis in fact and fail to constitute a cause of action. Masuda argues that Landlord's pleadings contain inaccurate allegations and, therefore, fail to constitute a cause of action. The relevant standard, however, is whether Landlord would have a cause of action if the factual allegations were true. (Chanko v Am. Broadcasting Co., 27 NY3d 46, 52 [2016].) If, as Landlord alleges, Masuda unjustifiably performed a series of risk-creating alterations to the premises, Landlord would have a cause of action against Masuda for nuisance.

Masuda's second affirmative defense is that Landlord is precluded, estopped, and barred by its own conduct from obtaining relief. As discussed above, Landlord's alleged failure to maintain the building may bar relief under Rumiche. Landlord argues that the court would be excusing Landlord and Masuda from complying with the Code if it precluded Landlord from obtaining relief. This is inaccurate. The instant case does not deal with whether the parties are obliged to comply with the Code. Instead, this case concerns the consequences of each party's alleged violations of the Code. For the same reason, the court does not strike Masuda's third affirmative defense of documentary evidence. Landlord does not dispute that Masuda has the [*6]appropriate documentary evidence to assert this defense. Instead, Landlord claims that Masuda's defense effectively requests the court to not enforce the law. Again, denying Landlord's counterclaims would not amount to not applying the law. Masuda may present documentary evidence that determines whether Landlord is entitled to relief. Masuda's second and third affirmative defenses are not meritless as a matter of law.

Masuda's fourth affirmative defense is that the statute of limitations has run on Landlord's counterclaims. The statute of limitations for a nuisance action is three years under CPLR 214(4). The statute of limitations, however, renews each day that the nuisance continues under the continuing wrong doctrine. (See Bloomingdales, Inc. v NYC Tr. Auth., 13 NY3d 61, 66 [2009].) Here, the alterations to the premises are a continuing nuisance because Landlord's interest in the property is harmed as long as they remain in place. (See Lombard v Sta. Sq. Inn Apts. Corp., 2010 NY Slip Op 51086[U], *3 [Sup Ct, Queens County June 21, 2010] [finding that defendant's installing scaffolding and netting was a continuing nuisance because the alterations were still in place when plaintiff began the action].) It is undisputed that Masuda's alterations are still in place. The statute of limitations, therefore, does not preclude Landlord's claims, as Masuda would have it.

Masuda's fifth affirmative defense is that Landlord has unclean hands. Landlord argues that the unclean-hands defense requires a fiduciary relationship and that a fiduciary relationship does not exist between a landlord and a tenant. Contrary to Landlord's assertion, a fiduciary relationship is not necessary to apply the doctrine of unclean hands. (See e.g. 135 E. 57th St. LLC v Daffy's Inc., 91 AD3d 1, 6 [1st Dept 2011] [rejecting unclean-hands defense in landlord-tenant context due to lack of evidence].) The unclean-hands defense may apply if Landlord was partially responsible for Masuda's failure to secure permits and for the DOB's issuing violations. This court does not find that Masuda's fifth affirmative defense is meritless as a matter of law.

Masuda's sixth affirmative defense is that Landlord waived its counterclaims and, therefore, should now be estopped from asserting them. Landlord argues that it cannot waive the requirements of the law. That is, Landlord does not have the power to waive Masuda's obligation to comply with the Code. Although this is true, it does not follow that Masuda's waiver-and-estoppel defense necessarily fails. It is within Landlord's ability to waive its claims against Masuda. (See Jefpaul Garage Corp. v Presbyt. Hosp. in NY, 61 NY2d 442, 446 [1984].) Even if Landlord cannot excuse Masuda from complying with the Code, Landlord can waive its right to bring a claim against Masuda for failing to comply with the Code. That is, while Landlord cannot constrain the DOB's actions in response to Masuda's alterations, Landlord can narrow its own legal remedies. Whether Landlord's conduct constituted a waiver of its counterclaims against Masuda is a question of fact that cannot be resolved at this stage. (See Haberman, 170 AD2d at 378.)

Masuda's ninth affirmative defense is that Landlord's counterclaims constitute retaliatory eviction under New York Real Property Law § 223-b. Landlord sought a writ of eviction against Masuda less than a year after plaintiffs brought this action. A question of fact exists about whether Landlord's counterclaim is legitimate due to Masuda's alleged nuisance conduct or whether it is a retaliatory eviction.

Masuda's first and fourth affirmative defenses are meritless as a matter of law. The court, therefore, strikes Masuda's first and fourth affirmative defenses. As Masuda's other affirmative defenses are not legal conclusions unsupported by facts and are not meritless, the court denies Landlord's motion to strike Masuda's second, third, fifth, sixth, and ninth affirmative defenses.

Accordingly, for the foregoing reasons it is hereby

ORDERED that the branch of defendants' motion under CPLR 3212 seeking summary judgment in its favor and the issuance of a writ of assistance against Plaintiff Masami Masuda is denied; and it is further

ORDERED that the branch of defendants' motion under CPLR 3212 seeking summary judgment in its favor with respect to rent from June to August 2014 in the amount of $3,162.63 is denied; and it is further

ORDERED that the branch of defendants' motion under CPLR 3211 (b) seeking to strike Masuda's first and fourth affirmative defenses is granted; and it is further

ORDERED that the branch of defendants' motion under CPLR 3211 (b) seeking to strike Masuda's second, third, fifth, sixth, and ninth affirmative defenses is denied; and it is further

ORDERED that defendants shall serve a copy of this order with notice of its entry on all parties.

Footnotes

Footnote 1: Masuda has not, however, provided an affidavit or other proof to authenticate the press release, nor provided evidence that might corroborate his statement that the HTPV pipe he replaced came within the scope of the recall described in the release. The court therefore declines, on this record, to grant summary judgment on this issue to Masuda as the nonmoving party. (See CPLR 3212 [b].)