1015 v. AS ADMINISTRATOR OF ESTATES OF AZAD ALLY CHANERAWAT ALLY AKA CHANDRAWATI ALLY ZEENA ALLY (2026)

Recitation, as required by CPLR R 2219(A), of the papers considered in review of Respondent-Tenant Zeena Ally as Administrator's motion for leave to file an amended answer (m seq #2):

Papers\Doc #

Notice of Motion 1 [NYSCEF #29]

Attorney's Affirmation in Support 2 [NYSCEF #30]

Exhibits A in Support (Proposed Amended Answer) 3 [NYSCEF #31]

Attorney's Affirmation in Opposition 4 [NYSCEF #32]

Exhibits A-B in Opposition (Prior Answer, Prior Attorney's Affirmation) 5,6 [NYSCEF ##33,34]

Affirmation in Reply 7 [NYSCEF #35]

Transfer Order 8 [NYSCEF #8]

Pretrial Order 9 [NYSCEF #9]

"Notice of Appearance" for Respondent-Tenant 10 [NYSCEF #10]

Affirmations and Exhibits in Opposition to M Seq #1 11-17 [NYSCEF ##18-24]

Upon the foregoing papers and for the reasons stated below, the motion of Respondent-Tenant Zeena Ally as Administrator of the Estates of Azad Ally and Chanerawat Ally, a/k/a Chandrawati Ally (Respondent-Administrator) is granted and her proposed amended answer [NYSCEF Doc #31] is deemed duly served and filed.

PROCEDURAL HISTORY

This is a nonpayment eviction proceeding commenced by the filing of a notice of petition and petition on October 6, 2023 by 1015 Concourse Owners Corp. (Petitioner) against Zeena Ally in two capacities: (1) as Administrator of the Estates of her parents, Azad Ally and Chanerawat Ally a/k/a Chandrawati Ally, identified in the petition as "Respondent-Tenant", and described in ¶ 2 of the petition as "tenant in possession", and (2) on her own behalf, identified in the petition as "Respondent-Undertenant" and described in ¶ 2 as "the undertenant(s) of the aforesaid respondent(s) tenant(s)". Paragraphs 3 and 4 of the petition state that "Respondent(s) are now in possession of said premises" and that "The premises are the residence of the tenant(s) and the undertenant(s) herein." Paragraph 6 of the petition alleges arrears of $37,286.06 and refers to an attached rider showing that the arrears began to accrue in February 2020 and continued thereafter in and for each month through August 2023. Paragraph 7 of the petition states that the apartment is not subject to rent regulation "because it is in a building owned and operated by a co-op corporation occupied by the tenant pursuant to the terms of a written proprietary lease agreement."

Ms. Ally by counsel representing her individually as Respondent-Undertenant filed an answer on October 30, 2023 raising six affirmative defenses: failure to state a cause of action; disputes the arrears allegedly owed; expenditure of monies "to fix and repair damage caused to the subject premises due to water leaking from the unit above the subject premises"; pending Bronx County Supreme Court action, Index No. 803950/2021E, seeks same relief in the form of use and occupancy; equitable estoppel; laches.

The case was calendared first in an Intake Part for January 22, 2024, transferred that day to a Resolution Part where it was calendared for March 11, 2024, then transferred that day to Part X for assignment to a Trial Part. The transfer order states: "The answer, filed by Zeena Ally individually, is NYSCEF Doc. # 4. It is noted that at the pre-trial conference, Mirkin & Gordon, PC stated they were also representing Zeena Ally in her capacity as the Administrator of the Estates of Azad Ally and Chanerawat Ally aka Chandrawati Ally."

The case appeared on the Trial Part T calendar for pre-trial conferences first on July 22, 2024 and then on September 23, 2024 when it was adjourned by pretrial order to March 18, 2025 for trial. In the section of the pretrial order labelled "Appearances", handwritten on the line labeled "Petitioner(s)" is "1015 Concourse Owners Corp" and handwritten on the line labeled "Respondent(s)" is "Zeena Ally by Mirken & Gordon". On March 18, 2025 the case was adjourned, on consent, to April 24, 2025 for another pre-trial conference, when it was then adjourned first to July 9 and then to August 13 for trial.

On July 25, using the Court's "Written Answer" form, Ms. Ally filed a document uploaded by the Court to NYSCEF as a "Notice of Appearance" (NYSCEF Doc #10). Ms. Ally handwrote on the form, "See attached Affidavit of Occupancy affirming Tamia Cline as a resident of 1015 Grand Concourse #2C Bx NY 10452. See attached Notice of Appearance for representation of Estates of Azad & Chandrawati Ally." Attached to the "Written Answer" form are two documents: (1) An unlabeled 2-page document that reads like a Notice of Appearance, in which Ms. Ally asserts she is appearing pro se on behalf of her parents' Estates. (2) A document labeled "Affidavit of Occupancy" signed by Ms. Ally and Tamia Cline in which Ms. Ally asserts she has lived in the apartment since 1989; is the daughter of Azad Ally and Chandrawati Ally, the original occupants and shareholders of the apartment; resides in the apartment as the Administrator of her parents' Estates, for which she holds Letters of Administration issued by the Surrogate's Court; currently lives with her adult daughter Tamia Cline; has paid for repairs, utilities, and household expenses; submits the affidavit "to assert and confirm our occupancy rights and legal standing" in this proceeding, the Supreme Court action under Index No. 803950-2021E, and another case in Housing Court, LT-003525-24/BX; and further submits the affidavit "in good faith to confirm our rights as lawful occupants and to request any relief that may be deemed appropriate, including recognition of tenancy, protections under the warranty of habitability, and standing to participate in related legal matters."

The trial started on August 13, 2025 with Petitioner appearing by counsel, Ms. Ally as Respondent-Undertenant appearing by counsel, and Ms. Ally as Respondent-Administrator appearing pro se. Petitioner completed its prima facie case. Ms. Ally as Respondent-Administrator called her daughter Tamia Cline as her first witness. Petitioner's counsel objected to Ms. Ally questioning her daughter about conditions in the apartment, stating that because "the Estate is an inchoate entity", it had no ability to be affected by conditions in the apartment and therefore no standing to raise breach of the warranty of habitability as a defense. Petitioner's counsel also asserted that Ms. Ally had no standing to raise breach of the warranty of habitability as a defense on her own behalf.

The Court adjourned the trial to October 29, 2025 by Interim Order that included a briefing schedule for Ms. Ally, appearing pro se as Administrator of her parents' Estates, to file a motion seeking leave to file a late answer and for Petitioner to file a cross-motion. The Order also required the Respondent-Administrator to pay monthly use and occupancy (U&O) of $1282.05 for August, September and October.

This proceeding was then stayed by Order of Supreme Court Justice Brigantti dated August 22, 2025. As the stay had not been lifted by the next scheduled appearance date, October 29, 2025, that date was postponed first to January 30, 2026 and then to February 6, 2026; no motion or cross-motion had yet been filed pursuant to the August 13, 2025 Interim Order. On February 6, the Supreme Court stay having been lifted, this case was adjourned by Stipulation to March 26 for conference with a new briefing schedule and with April 29, 2026 reserved for continued trial.

Ms. Ally, still appearing pro se as Administrator of her parents' Estates, filed motion papers seeking leave to file a late answer; Petitioner filed opposition. However, on March 26 Ms. Ally as Respondent-Administrator appeared with newly-retained counsel. The motion Ms. Ally had filed without counsel was withdrawn and she was given permission to file a new motion by counsel, with a new briefing schedule and an adjourned date of April 22, 2026. On April 22 the Court heard argument on the motion, marked it submitted, and reserved three dates in August for the continued trial. It was undisputed that Respondents have continued to pay U&O since August 2025.

On April 22 Ms. Ally's attorneys also made an oral request for permission to have a witness appear virtually for trial: the contractor Ms. Ally had hired to perform work in the apartment, who had relocated to Maryland. Petitioner's attorney would not consent to this request and the Court adjourned the case to May 27 for further motion practice on this issue.

RESPONDENT-ADMINISTRATOR'S MOTION BY COUNSEL

The motion now pending before this Court seeks leave to serve an amended answer pursuant to CPLR § 3025(b). In a supporting affirmation, Respondent-Administrator's attorney states the rules that, absent prejudice, under CPLR § 3025(b) leave to amend a pleading should be freely granted; under CPLR § 2001, a court may disregard a "mistake, omission, defect or irregularity"; and delay alone or the exposure of the opposing party to greater liability is insufficient to establish prejudice. Counsel reviews the procedural history of this case and notes that while Ms. Ally's original answer was interposed by her attorney on October 30, 2023 in her individual capacity only, the Court's transfer order noted that counsel had represented at a pre-trial conference that they also appeared for Ms. Ally in her capacity as Administrator.

Counsel for Respondent-Administrator asserts that the proposed amended answer "clarifies Respondent's appearance in her capacity as Administrator and expands upon defenses previously interposed in the original Answer relating to conditions affecting the subject premises". Attorney's Affirmation at ¶¶ 12-13. Further, "The proposed Amended Answer more fully articulates those defenses, including breach of the Warranty of Habitability, entitlement to abatements and setoff arising from the same operative facts already placed at issue." Id. at ¶ 15. The proposed amended answer raises eight affirmative defenses: failure to state a cause of action; denial of amounts alleged to be due and owing; premises "affected by recurring water infiltration and related conditions originating from building systems and/or adjacent units" for which "Respondent and/or the Estates have expended monies to repair damage caused by such conditions", entitling Respondent to a setoff against sums claimed due; breach of the warranty of habitability for which Respondent is entitled to an abatement of any rent and/or U&O claimed due; abatement and/or offset based upon partial constructive eviction; equitable estoppel; and laches.

In opposition, Petitioner argues that counsel for Respondent-Administrator has incorrectly sought leave to file an amended answer under CPLR § 3025(b), when the issue for the Court to determine is whether a late answer is to be permitted. Petitioner asserts that the only answer filed in this case is the one filed by Mirkin & Gordon "on behalf of Respondent, Zeena Ally, individually" (NYSCEF Doc #4). Petitioner further argues that even if the motion had been filed under CPLR § 3012(d) it should be denied as there has been no showing of a reasonable excuse for the delay in filing an answer; this proceeding was commenced by a petition filed on October 6, 2023.

Petitioner also argues that the proposed answer raises meritless claims, pointing to its opposition to the prior motion Respondent-Administrator had filed pro se, where Petitioner argued:

• Under Judiciary Law § 478, Zeena Ally as Administrator of her parents' Estates may not file an answer and defend this proceeding without counsel as Surrogate's Court filings show that she is not the sole beneficiary under those Estates.

• Any defense and/or counterclaim of constructive eviction on behalf of the proprietary lessees/shareholders lacks merit as Ms. Ally does not claim her parents vacated the apartment because of uninhabitable conditions and acknowledges that she and her daughter reside in the apartment.

• Any defense and/or counterclaim of breach of warranty of habitability on behalf of the proprietary lessees/shareholders lacks merit as they died prior to the period for which unpaid maintenance is sought (February 2020 forward) and a lessee is not entitled to relief under the warranty of habitability for months they did not reside in the apartment.

On reply, Respondent-Administrator's counsel reiterates his explanation for why the motion was brought as one to file an amended answer under CPLR § 3025(b), rather than a late answer under CPLR § 3012(d), and further asserts that even if the Court treats the motion as one to file a late answer it should be granted as the record establishes that Respondent has a reasonable excuse for the delay, Respondent has actively participated in this proceeding, Petitioner suffers no prejudice, and the proposed defenses are not palpably insufficient. Counsel further points to "the liberal policy favoring resolution of cases on the merits". Reply Affirmation at ¶ 15.

DISCUSSION

Having reviewed the entire file in this case - including the Resolution Part Judge's transfer order [NYSCEF Doc #8], the pretrial order issued by the Judge sitting in this Trial Part in September 2024 [NYSCEF Doc #9], and the document Ms. Ally filed on July 25, 2025 using the Court's "Written Answer" form and uploaded by the Court to NYSCEF with the label "Notice of Appearance" [NYSCEF Doc #10] - it is evident that there has been confusion as to whether Respondent Zeena Ally as Administrator of her parents' Estates filed an Answer prior to retaining counsel who filed the motion that is now before this Court.

After Petitioner completed its prima facie case at trial on August 13, 2025, and then raised the question of whether Respondent Zeena Ally as Administrator of her parents' Estates was permitted to introduce evidence in support of a claim of breach of the warranty of habitability, this Court drafted an order adjourning the case with a briefing schedule to allow Ms. Ally to file what the Court thought at that time should be a motion to file a late answer. Ms. Ally did in fact file such a motion on or about March 10, 2026.¹ On the return date of that motion, March 26, 2026, in part because of Petitioner's objection under Judiciary Law § 478, and in part because Ms. Ally as Administrator now appeared by counsel, that motion was withdrawn and the new motion that is now before this Court was filed and fully briefed.

Upon closer examination, it can be seen that what Ms. Ally filed on July 25, 2025 — labelled by court personnel who uploaded it for her as a "Notice of Appearance" - starts with a form entitled "Written Answer" and ends with a self-styled "Affidavit of Occupancy" signed by Ms. Ally and Tamia Cline that concludes with the statement: "This affidavit is submitted in good faith to confirm our rights as lawful occupants and to request any relief that may be deemed appropriate, including recognition of tenancy, protections under the warranty of habitability, and standing to participate in related legal matters." Giving deference to Ms. Ally as Administrator's pro se status at that time, and given that the Judiciary Law § 478 concerns had not yet been brought to the Court's attention, in hindsight it is apparent that this Court could have deemed Ms. Ally's filing on July 25, 2025 to be an answer, and, in its Order of August 13, 2025 rather than directing Ms. Ally to file a motion for leave to file a late answer could have directed her to file a motion for leave to file an amended answer.

On this record, that Ms. Ally's newly-retained counsel representing her in her capacity as Respondent-Administrator of her parents' Estates would proceed under CPLR § 3025(b), as opposed to CPLR § 3012(d), is understandable and the Court will decide the motion under both standards.

It is well-settled that leave to amend a pleading is freely granted under CPLR R 3025 where "the proposed amendment is not palpably improper or insufficient as a matter of law, and the resulting delay will cause plaintiff no prejudice or surprise." Gibson v Estate of Antiaris (168 AD3d 461, 462-63, 91 NYS3d 399, 400 [1st Dep't 2019]). See also O'Halloran v Metro Transp Auth (154 AD3d 83, 88, 60 NYS3d 128, 133 [1st Dep't 2017]); Mezzacappa Bros, Inc v City of New York (29 AD3d 494, 815 NYY2d 549 [1st Dep't 2006]). As explained by the Court of Appeals, "The decision to allow or disallow the amendment is committed to the court's discretion. 'Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine.' " Edenwald Contracting Co v New York (60 NY2d 957, 959, 471 NYS2d 55, 56, 459 NE2d 164, 165 [1983])(quoting Siegel, New York Practice). Prejudice means that a party "incurs a change in position or is hindered in the preparation of its case or has been prevented from taking some measure in support of its position, and these problems might have been avoided had the original pleading contained the proposed amendment." Valdes v Marbrose Realty Inc (289 AD2d 28, 29, 734 NYS2d 24, 25 [1st Dep't 2001]). See also A J Pegno Constr Corp v New York (95 AD2d 655, 656, 463 NYS2d 214, 215 [1st Dep't 1983])(describing the prejudice which must be shown as, "some special right lost in the interim, some change of position or some significant trouble or expense that could have been avoided had the original pleading contained what the amended one wants to add").

Here, Petitioner's primary objection to the proposed answer, be it treated as an amended one or an original one, is to Ms. Ally as Administrator raising defenses of breach of the warranty of habitability and partial constructive eviction due to conditions in the apartment. Petitioner's objection, based on the undisputed fact that the proprietary lessees passed away before the period for which arrears are sought in this case, essentially is that Ms. Ally as Administrator of their Estates lacks standing to raise these defenses. This Court finds otherwise.

The starting point is Section 13-1.1 of the Estates Powers & Trusts Law (EPTL), under which a leasehold interest passes as personal property to the estate, which remains liable for rent payment. "Thus, an executor has the right, until the expiration of the lease, to possession of the demised premises in his capacity as representative of the deceased tenant's estate." Joint Props Owners, Inc v Deri (113 AD2d 691, 693-94, 497 NYS2d 658, 661 [1st Dep't 1986]).

As to the specific question raised herein — whether an administrator of an estate in possession of a co-op apartment has standing to raise partial constructive eviction and breach of the warranty of habitability as defenses to a nonpayment eviction proceeding seeking to recover maintenance arrears - this Court's research has turned up Housing Court Judge Stoller's decision in Turin Hous Dev Fund Corp v Kennedy (80 Misc 3d 1212[A], 195 NYS3d 637 [Civ Ct NY Co 2023]), which, like this case, involved a nonpayment proceeding against the administrators of the estate of a deceased proprietary lessee and shareholder of an apartment in a residential cooperative building. While there are some significant factual differences — for example, in that case, neither of the two respondent-administrators, nor anyone else, resided in the apartment at any relevant time — Judge Stoller's analysis of various defenses raised by the respondent-administrators is instructive. Setting out the framework, Judge Stoller explained:

A proprietary lease, which Petitioner submitted into evidence, is no different from any other type of lease, State Tax Com. v. Shor, 53 AD2d 814, 815, 385 N.Y.S.2d 290 (1st Dept. 1976), and therefore a proprietary lease creates a landlord-tenant relationship between the shareholder and the cooperative corporation. Suarez v. Rivercross Tenants' Corp., 107 Misc 2d 135, 137, 438 N.Y.S.2d 164 (App. Term 1st Dept. 1981), Michel v. 14 Beekman Place Corp., 2016 NY Slip Op. 31001[U], ¶ 5 (S. Ct. NY Co.)(Kern, J.). Accordingly, a cooperative can sue a shareholder for nonpayment of maintenance pursuant to RPAPL § 711(2). Earl W. Jimerson Housing Co. v. Butler, 102 Misc 2d 423, 424, 425 N.Y.S.2d 924 (App. Term 2nd Dept. 1979), 1990 Seventh Ave. Co-operative Corp. v. Edwards, 133 Misc. 831, 234 N.Y.S. 82 (App. Term 1st Dept. 1929). Decedent's death did not terminate her proprietary lease but rather caused the leasehold interest to pass as personal property to her estate, which remained liable for payment of rent.

Judge Stoller went on to review the various defenses raised by the non-occupant respondent-administrators, including constructive eviction and breach of the warranty of habitability. Significantly, in finding that the respondent-administrators had not proven their defenses, Judge Stoller did not do so because they lacked standing to raise these defenses. Rather, it was because of the specific facts of that case. As to the constructive eviction defense - based on the claim that petitioner-landlord refused to provide respondents a key to the apartment - the evidence showed that they were given keys once they were appointed as administrators. Judge Stoller explained:

While a representative of an estate may occupy the leased premises of a deceased tenant, that occupancy is solely in the capacity as a representative of the deceased tenant's estate. Jackson v. Kessner, 206 AD2d 123, 127-28, 618 N.Y.S.2d 635 (1st Dept. 1994). Logically, then, if someone is not a representative of an estate, there is no discernible capacity according to which such a person is entitled to possession of the leased premises. Cf. Herson v. Marzullo, 72 Misc 3d 132[A], 2021 NY Slip Op 50651[U], 148 N.Y.S.3d 605(App. Term 2nd Dept. 2021)(there was no contractual landlord/tenant relationship between a tenant and a daughter of a deceased landlord when no representative had been appointed for the estate of the deceased landlord). As Respondents did not obtain the status of representatives of the estate until July of 2019, their constructive eviction defense up to that point therefore does not lie. Moreover, given that Respondent lives in South Carolina and Co-Respondent lives in New Jersey, the preponderance of the evidence is insufficient to show what happened in the month in between the issuance of the letters of administration and Petitioner that would rise to the level of constructive eviction.

As to the respondents-administrators' defense of breach of warranty of habitability based on housing code violations, Judge Stoller found,

[S]imilar logic applies. Only a tenant of record is entitled to a rent abatement. Bandler v. Battery Park Mgt. Co., 809 N.Y.S.2d 480, 10 Misc 3d 133[A], 2005 NY Slip Op 52063[U] (App. Term 1st Dept. 2005). Be that as it may, some of the violations post-date the issuance of letters of administration, putting into play Respondents' out-of-state residence. Tenants who do not reside in leased premises cannot obtain a rent abatement. Andreas v. 186 Tenants Corp., 208 AD3d 406, 408, 174 N.Y.S.3d 58 (1st Dept. 2022), leave to appeal dismissed, 39 NY3d 1099, 186 N.Y.S.3d 610, 207 N.E.3d 576 (2023).

That is, because neither of the two administrators of the deceased shareholder/ proprietary lessee resided in the apartment, they could not seek an abatement of the maintenance.

Based on the above analysis, here, where Ms. Ally asserts — and it has not been disputed — that she has resided in the premises at all relevant times, she has standing as Respondent-Administrator to raise defenses of breach of the warranty of habitability and partial constructive eviction to Petitioner's claim for unpaid maintenance. It is clear from the record in this proceeding that Ms. Ally has been raising these issues since this case started, and Petitioner cannot claim to be surprised or unduly prejudiced at this juncture.

Turning to CPLR § 3012(d), the court may compel the acceptance of a late pleading "upon such terms as may be just and upon a showing of reasonable excuse for delay or default." The court has broad discretion when determining the sufficiency of an excuse for a defendant's failure to timely serve an answer. Cirillo v Macy's (61 AD3d 538, 877 NYS2d 281 [1st Dep't 2009]). Here, the procedural history of the case as detailed above establishes a reasonable excuse for Ms. Ally's delay in filing an answer as Administrator of her parents' Estates — separately from her role as an individual Respondent-Undertenant. As Petitioner itself points out, until Ms. Ally hired separate counsel to represent her in her role as Administrator of her parents' Estates, Judiciary Law § 478 precluded her from appearing and filing an answer. It also should be noted that this case moved quickly from the Resolution Part to a Trial Part — the case was transferred on the date of the first Resolution Part appearance - and the subsequent delays were due largely to the Trial Part's busy schedule (first a four-month delay between the Resolution Part appearance and the first appearance in the Trial Part, then a six-month delay between the second conference date in the Trial Part and the first scheduled trial date, which then was adjourned on consent) and the stay of this proceeding through late January 2026 due to the Supreme Court's order of August 22, 2025.

Further, public policy favors the resolution of disputes on their merits; requiring Ms. Ally — who now has retained separate counsel to represent her in her capacity as Administrator of her parents' Estates - to proceed to trial without an answer on file that fully states her defenses does not serve the interests of justice. Matter of Thomas Anthony Holdings LLC v Goodbody (210 AD3d 547, 176 NYS3d 780 [1st Dept 2022]); Jones v 414 Equities LLC (57 AD3d 65, 81, 866 NYS2d 165, 177-78 [1st Dep't 2008]).

CONCLUSION

For the reasons stated above, it is hereby ORDERED that the motion of Respondent-Tenant Zeena Ally as Administrator of her parents' Estates is granted, the proposed "Amended Answer" filed on April 8, 2026 [NYSCEF Doc. # 31] is deemed duly served and filed, and this proceeding is calendared for conference (and/or a hearing on another motion Respondent was given permission to file) in Part T on May 27, 2026 at 9:30 a.m. This constitutes the Decision and Order of this Court, which is being uploaded on NYSCEF.

Diane E. Lutwak, HCJ

Dated: April 30, 2026

Bronx, New York

FOOTNOTES

1.   The briefing of that motion was delayed by Supreme Court Justice Brigantti's stay of this proceeding by Order issued on August 22, 2025.

Diane E. Lutwak, J.