91-10 146 LLC v Sunshine Dev. Sch., Inc.

[*1] 91-10 146 LLC v Sunshine Dev. Sch., Inc. 2022 NY Slip Op 50988(U) Decided on March 1, 2022 Civil Court Of The City Of New York, Queens County Li, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 1, 2022
Civil Court of the City of New York, Queens County

91-10 146 LLC, Petitioner(s),

against

Sunshine Development School, Inc., Respondent(s).



Index No. LT-304270-21/QU



Petitioner's counsel:

Ruskin, Moscou & Faltischek

1425 RXR Plaza, East Tower, 15th Floor

Uniondale, NY 11556

Respondent's counsel:

Elias C. Schwartz

343 Great Neck Road

Great Neck, NY 11021
Wendy Changyong Li, J.

I. Papers

The following papers were read on Petitioner's motion to dismiss and Respondent's cross-motion to amend:

Papers Numbered

Petitioner's Notice of Motion, Affirmation in Support, and Memorandum of Law dated August 13, 2021 ("Motion") and electronically filed with the court on the same date. 1

Respondent's Notice of Cross-Motion and Affirmation in Support dated September 7, 2021 ("Cross-Motion") and electronically filed with the court on the same date. 2

Petitioner's Reply Affirmation dated August 30, 2021 ("Reply") electronically filed on the same date, and Petitioner Reply Memorandum of Law dated September 13, 2021 and electronically filed with the court on the same date. 3

Respondent's Reply Affirmation dated September 14, 2021 ("Cross-Motion Reply") and electronically filed with the court on the same date 4

II. Background

In a notice of petition and petition ("Petition") filed July 12, 2021, Petitioner commenced this commercial nonpayment proceeding against Respondent for premises known as 91-10 146th [XXX], Jamaica, New York [XXX] ("Premises"), to recover $489,030.98 in unpaid rent from January 2, 2020 and a judgment of possession (see Motion, Aff. of Diskin, Ex. 1). In its answer, Respondent raised various affirmative defenses and asserted counterclaims against Petitioner for breach of duty to repair and failure to pay annual interest on its security deposit (see id., Ex. 2). Petitioner moved to dismiss Respondent's counterclaims and affirmative defenses (CPLR 3211[a][2] and [b]). Respondent cross-moved to amend its answer (CPLR 3025[b]).

III. Discussion and Decision

A. Motion to Dismiss

Petitioner contended that New York City Civil Court ("Civil Court") lacked subject matter jurisdiction over the counterclaims Respondent asserted against Petitioner for breach of warranty of habitability ("First Counterclaim") and failure to pay interest on Respondent's security deposit ("Second Counterclaim"). It is well established that Civil Court has jurisdiction over counterclaims where (1) the subject matter of which the court would have jurisdiction if sued upon separately, (2) for money only regardless of the amount, (3) for recission or reformation of the transaction upon which Plaintiff's claim is based if the counterclaim does not exceed $50,000.00, (4) for post-partnership dissolution accounting where the partnership assets' value does not exceed $50,000.00, and, (5) related to an action or proceeding under New York City Civil Court Act § 110[a] commenced by the city to enforce the multiple dwelling law, housing maintenance code, or state or local law regarding enforcement of proper housing standards (see CCA 208).

Here, while Petitioner correctly contended that a warranty of habitability applied only to residential premises (see RPL 235-b[1]; Disunno v WRH Props., LLC, 97 AD3d 780, 781 [2d Dept 2012]), the First Counterclaim did not allege a breach of warranty of habitability, but rather alleged that Petitioner breached lease obligations to repair the Premises which caused Respondent's damages. The relief Respondent requested in its First Counterclaim, however, is for an order directing Petitioner to perform the repairs required. Since this relief is equitable in nature, Civil Court lacks jurisdiction to grant it (Haque v Rob, 83 AD3d 895, 895 [2d Dept 2011]; Miranda v Smyrna Bldg. Corp., 180 Misc 3d 656, 656 [2d Dept 1999], see Jimenez v Nunez, 42 Misc 3d 145[A], 2014 NY Slip Op 50341[U] *2 [App Term 2d Dept 2014]). Petitioner maintained that the Second Counterclaim was irrelevant to the non-payment of rent. While Respondent correctly pointed out that its "answer [might] contain any legal or equitable defense, or counterclaim," (RPAPL 743; Matter of Rockaway One Co., LLC v Wiggins, 35 AD3d 36, 38 [2d Dept 2006]), Civil Court must still have jurisdiction over the counterclaim to determine it. Respondent also pointed out that Civil Court "[might] consider any defense to a cause of action or claim asserted by any party, whether such defense be denominated or deemed [*2]legal or equitable in nature" (CCA 905). Section CCA 905, which relates to defenses, does not counter Petitioner's arguments that CCA 208 delineates the counterclaims over which Civil Court has jurisdiction. In its Second Counterclaim, Respondent requested an accounting of the unpaid interest and payment of the interest. Here, the equitable relief of the accounting was not merely subordinate to the claim for a money judgment, therefore it is not an appropriate counterclaim (see All 4 Sports & Fitness, Inc. v Hamilton, Kane, Martin Enters., Inc., 22 AD3d 512, 513 [2d Dept 2005]). As such, since the relief requested involved an accounting unrelated to a partnership dissolution (see CCA 208[c][2]) and was not for money only (see CCA 208[b]), this Court lacks jurisdiction to decide the Second Counterclaim either. As a result, this Court must dismiss both counterclaims, but without prejudice to a plenary action for these claims in an appropriate forum.

Petitioner also sought to dismiss all of Respondent's affirmative defenses as conclusory (CPLR 3211[b]). It is traditionally upheld that affirmative defenses lacking supporting facts should be dismissed (Diaz v 297 Shaefer St. Realty Corp., 195 AD3d 794, 796 [2d Dept 2021]; Bank of Am., N.A. v 414 Midland Ave. Assoc., LLC, 78 AD3d 746, 750 [2d Dept 2010]). Reviewing Respondent's answer, this Court finds that the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Thirteenth Affirmative Defenses merely pleaded conclusions of law without supporting facts. The Twelfth affirmative defense merely reserved a right to interpose additional affirmative defenses, which the Twentieth affirmative defense duplicated. The remaining affirmative defenses, namely the Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, and Nineteenth affirmative defenses pleaded facts to support the defenses asserted therein. Here, Respondent failed to address Petitioner's contentions that the affirmative defenses were inadequately pleaded. In addition, liberal construction of the conclusory affirmative defenses as Respondent requested in opposition would require assumption of facts that are not alleged therein. Therefore, this Court only dismisses the First through Eleventh and Thirteenth affirmative defenses as lacking supporting facts (Diaz v 297 Schaefer St. Realty Corp., 195 AD3d at 796; Moran Enters., Inc. v Hurst, 96 AD3d 914, 917 [2d Dept 2012]; Bank of Am., N.A. v 414 Midland Ave. Assoc., LLC, 78 AD3d at 750), and the Twentieth Affirmative defense as duplicative of the Twelfth Affirmative defense. Since the First affirmative defense of lack of jurisdiction is dismissed, there is no need to address Petitioner's contentions regarding Respondent's waiver of that affirmative defense.

B. Cross-Motion to Amend

Regarding the Cross-Motion, Petitioner maintained that Respondent's Cross-Motion was untimely served because Petitioner made its motion returnable August 31, 2021, and requested that opposing papers be served seven days before the return date, but Respondent did not file its Cross-Motion until September 7, 2021 (see CPLR 2214[b]). As Respondent's Cross-Motion could not have been served prior to the August 31, 2021 return date, it was untimely (id.). Even if the Court considered Respondent's Cross-Motion, "[a]ny motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading" (CPLR 3025[b]). Since Respondent failed to present an amended answer with its Cross-Motion, this Court denies Respondent's Cross-Motion to amend (Mendoza v Enchante Accessories, Inc., 185 AD3d 675, 679 [2d Dept 2020]; G4 Noteholder, LLC v LDC Props., LLC, 153 AD3d 1326, 1327 [2d Dept 2017]). This Court further notes that Respondent did not even describe the proposed [*3]amendments in its affirmation.

IV. Order

Accordingly it is

ORDERED that Petitioner's Motion is granted in part and the First Counterclaim, Second Counterclaim, and the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Thirteenth and Twentieth affirmative defenses are dismissed without prejudice; and it is further

ORDERED that Respondent's Cross-Motion to amend is denied.

This constitutes the court's Decision and Order.

Dated: March 1, 2022

Queens County Civil Court

________________________________

Hon. Wendy Changyong Li, J.C.C.