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Civil Court, City of New York.

ROCHDALE VILLAGE INC., Petitioner-Landlord, v. Girleen MOORE, Respondent-Cooperator.

L & T 61806/19

Decided: February 13, 2020

Attorneys for Petitioner: Matilde Pena, Esq., Matilde Pena & Associates, P.C., 336 Hutchinson Blvd, Suite A, Mount Vernon, NY 10552 Attorneys for Respondent: Priam Saywayck, Esq., Jacob Umoke, Esq., Queens Legal Services, 89-00 Sutphin Boulevard, 5th Floor, Jamaica, NY 11435

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Respondent's motion to for leave to amend the answer pursuant to CPLR § 3025(b):

Papers Numbered

Notice of Appearance and Notice Motion & Affidavits/Exhibits Annexed. 1

Affirmation in Opposition & Exhibits Annexed 2

Affirmation in Reply 3

Upon the foregoing cited papers, the decision and order on Respondent's motion is as follows:


The immediate nonpayment proceeding was commenced by Notice of Petition and Petition dated June 2, 2019. The Petition alleges that Respondent is a Cooperator in the premises, which is a Mitchell-Lama cooperative apartment. Respondent filed a pro se answer on June 5, 2019. On the first court date, June 19, 2019, the proceeding was adjourned to July 17, 2019 for Respondent to seek counsel via the Universal Access program. On July 17th, Queens Legal Services appeared as counsel for Respondent and the parties adjourned the proceeding to August 16, 2019 for motion practice and for a traverse hearing on the service of the rent demand. Respondent, through counsel, then served the immediate motion to amend the answer. On August 16th, counsel for the parties executed a stipulation whereby Respondent waived her traverse defense. The proceeding was adjourned again, to November 6, 2019. Before the November 6th court date, Petitioner submitted opposition papers to Respondent's motion and Respondent submitted a reply. The Court heard argument on Respondent's motion on November 6th and reserved decision.


Pursuant to CPLR § 3025(b), “[a] party may amend his or her pleading ․ at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including granting of costs and continuances.” See, e.g., Morton v. Brookhaven Mem. Hosp., 32 AD3d 381 (2d Dep't 2006) (Amendment of pleadings should be liberally granted unless the proposed amendment is “palpably insufficient as a matter of law or is totally devoid of merit”). Annexed as Exhibit A to Respondent's motion is a proposed Notice of Appearance, Amended Answer, Defenses and Counterclaims. Respondent states in her Affidavit in support of the motion that she was unrepresented when she first appeared in the proceeding and was unaware of all of the defenses available to her until she consulted with counsel. The proposed Answer includes as a First Affirmative Defense improper service of the rent demand; however, that defense has been waived by Respondent in a two-attorney stipulation.

Respondent's proposed Second Affirmative Defense claims that the rent demand is defective because Respondent allegedly paid rent for the months of March and April 2019, which are sought in the rent demand. The proposed Third and Fourth Affirmative Defenses dispute that Petitioner is able to recover “additional maintenance” and legal fees from a prior proceeding in this summary proceeding. The proposed Answer also includes three counterclaims, the first two of which claim a breach of warranty of habitability and consequent damages for the breach. The third counterclaim seeks an order to correct certain conditions that allegedly constitute violations of housing standards set forth in the Multiple Dwelling Law (MDL), Housing Maintenance Code (HMC), and Real Property Law (RPL) § 235-b.

Petitioner opposes the amendment of the answer, first disputing Respondent's defense that the rent demand is defective. Petitioner argues that the rent demand is “clear, concise and states the arrears owed and due by the Respondent and provided the Respondent with a legally sufficient notice to allow her to defend herself.” (Pena Affirmation, ¶ 9). It is indeed true that a proper rent demand must ‘set forth the approximate good faith amount of rent owed’ and ‘fairly apprise the tenant of the periods for which rent is allegedly due and in what amounts.’ ” EOM 106-15 217th Corp. v. Severine, 62 Misc 3d 141(A), 2019 NY Slip Op. 50068(U) (App. Term 2d, 11th & 13th Jud. Dists. 2019) (citing Dendy v. McAlpine, 27 Misc 3d 138(A), 911 N.Y.S.2d 691 (App. Term 2d, 11th & 13th Jud. Dists. 2010) and Pantigo Professional Ctr., LLC v. Stankevich, 60 Misc 3d 133(A), 2018 NY Slip Op. 51039(U) (App. Term, 9th & 10th Jud. Dists. 2018)). However, as Respondent's proposed defense alleges that two of the three months that are sought in the rent demand were paid, she has set forth a defense that is “not totally devoid of merit.” See, e.g., EOM 106-15 217th Corp., supra (Rent demand was defective where payments that were earmarked for specific months were omitted from the demand). As for the proposed Third Affirmative Defense, which alleges that Petitioner may not seek “additional maintenance” pursuant to Real Property Actions and Proceedings Law (RPAPL) § 702, the Court finds that it is totally devoid of merit. RPAPL § 702, which provides that “[n]o 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,” only went into effect after the passage of the Housing Stability and Tenant Protection Act (HSTPA) of 2019 and applies to “actions and proceedings on or after [the] effective date” of the statute (June 14, 2019). See Laws 2019, ch 36, §§ 11 and 29 (Part M); see also Regency Vil. Mgt. v. Rodriguez, 2020 NY Slip Op. 50168(U) (App. Term 9th & 10th Jud. Dists. 2020). Since the immediate proceeding was commenced no later than the filing of the Notice of Petition and proof of service thereof on June 6, 2019 (see Denis v. Fisher, 2019 NY Slip Op. 29389 (Civ. Ct. Queens County 2019) (citing, inter alia, 92 Bergenbrooklyn LLC v. Cisarano, 50 Misc 3d 21 (App. Term 2d, 11th & 13th Jud. Dists. 2015))), RPAPL § 702 does not apply to this proceeding.

With regard to Respondent's proposed Fourth Affirmative Defense, there is no indication in the Petition that the $250.00 in legal fees sought herein are attributable to a prior proceeding. Petitioner annexes a copy of Respondent's Occupancy Agreement to its opposition papers; Paragraph 23 of the Occupancy Agreement specifically states that attorney's fees incurred in bringing any legal action or dispossess proceeding may be considered as “additional rent.” Nonetheless, since the legal fees were not sought in the rent demand and no indication is made as to the origin of the legal fees, Respondent is entitled to challenge the basis for the legal fees. Accordingly, the Court finds that the proposed Fourth Affirmative Defense is not “totally devoid of merit.”

Petitioner also argues that Respondent's proposed warranty of habitability counterclaims are without merit and annexes Respondent's Occupancy Agreement to demonstrate that Petitioner is not subject to the statutory warranty of habitability. Paragraph 6(a) of the Occupancy Agreement states that “[a]ny repairs to the Apartment or Building resulting from the use or negligence of Cooperator, his servants, visitors, guests or members of Cooperator's family, ordinary wear and tear excepted, may be made by the Company at the expense of Cooperator. The cost of such repairs shall be paid by Cooperator to the company as additional rent ”

The statutory warranty of habitability is codified in Real Property Law (RPL) § 235-b, which provides that “[i]n every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety.” It is well established that “tenant-shareholders in a cooperative can rely on section 235-b” of the Real Property Law. Frisch v. Bellmarc Management, Inc., 190 AD2d 383, 384 (1st Dep't 1993). See also McCrossin v. Benson Ave. Owners Corp., 35 Misc 3d 143(A) (App. Term 2d Dep't 2012) (Finding breach of warranty of habitability in small claims action by shareholder against cooperative); Musey v. 425 E. 86 Apts. Corp., 154 AD3d 401, 405 (1st Dep't 2017). This flows from the recognition that “[t]he cooperative corporation is the sole owner of the land, structures and facilities, while the individual shareholder through the proprietary lease receives the right to occupy the space in the premises to which his or her shares are allocated.” Frisch, 190 AD2d at 387 (internal citations omitted).

Petitioner, however, references a decision in Rochdale Village Inc. v. Grace Powell, Index No. L & T 83457/11, purportedly standing for the proposition that Rochdale Village is not responsible for any repairs “from use or negligence, including ordinary wear and tear.” Petitioner does not attach the copy of this (presumably) unreported decision. The decision in the Grace Powell case allegedly cited to McMunn v. Steppingstone Management Corp., 131 Misc 2d 340, 500 N.Y.S.2d 219 (Civ. Ct. NY County 1986). In McMunn, the court acknowledged that RPL § 235-b applies to cooperatives. As here, the proprietary lease in McMunn required the shareholder-tenant to undertake certain repairs in the apartment. Ultimately, the court held that the shareholder-tenant was responsible for all conditions that she was required to repair under the proprietary lease, upon an analysis contrasting a typical landlord-tenant leasehold with the cooperative-shareholder relationship and finding that “the lease at issue is not an adhesion contract from which the tenant needs protection.” McMunn, 131 Misc 2d at 344, 500 N.Y.S.2d at 221. However, subsequent to McMunn, two Appellate Term, First Department decisions have specified that “[t]he cooperative, as statutory owner, is obligated in the first instance to remove Housing Code violations,” notwithstanding a further determination of whether a shareholder tenant is responsible for repair expenses pursuant to a proprietary lease. Kahn v. 230-79 Equity, Inc., 2 Misc 3d 140(A), 784 N.Y.S.2d 921 (App. Term 1st Dep't 2004); see also Farber v. 535 E. 86th St. Corp., 2002 NY Slip Op. 50064(U) (App. Term 1st Dep't 2002).

In reviewing Respondent's proposed warranty of habitability counterclaims, the Court does not find that they are “totally devoid of merit.” The counterclaims allege that there exists and has existed a rodent infestation and cracked wooden floors throughout Respondent's apartment. As the foregoing discussion reveals, appellate courts in the First and Second Departments have affirmed the applicability to RPL § 235-b to cooperative apartments; whether Respondent would be responsible for the costs of any repairs under her Occupancy Agreement need not be determined at this time. Although Petitioner's counsel states in the opposition papers that extermination is provided for free to cooperators at Rochdale Village, Respondent is entitled to a determination on the merits as to whether there has been a breach of the warranty of habitability as a result of the alleged rodent infestation. See Park West Management Corp. v. Mitchell, 47 NY2d 316, 328 (1979) ( [N]o one will dispute that health and safety are adversely affected by insect or rodent infestation, insufficient heat and plumbing facilities, significantly dangerous electrical outlets or wiring, inadequate sanitation facilities or similar services which constitute the essence of the modern dwelling unit.”).

Finally, Respondent's proposed Third Counterclaim, seeking an order to correct, is also “not totally devoid of merit.” Civil Court Act § 110(c) provides that “[r]egardless of the relief originally sought by a party the court may recommend or any remedy, program, procedure or sanction authorized by law for the enforcement of housing standards, if it believes they will be more effective to accomplish compliance or to protect and promote the public interest ” Accordingly, this Court is specifically tasked with the enforcement of housing standards, and may entertain Respondent's request for an order to correct any violation of those standards.

Although Petitioner's attorney claims prejudice and surprise if amendment is granted in the opposition papers (see Pena Affirmation, ¶ 14), no affidavit from any individual on behalf of Petitioner is included in the opposition papers. As a result, the Court finds that no prejudice or surprise has been demonstrated by Petitioner.


In accordance with the foregoing determinations, Respondent's motion to amend the answer is granted except insofar as the First and Third Affirmative Defenses are deemed stricken therefrom. The Notice of Appearance, Amended Answer, Defenses, and Counterclaims (as modified by the Court) is deemed served and filed. The immediate proceeding is restored to the Part A calendar in Room 401 for trial on March 18, 2020 at 9:30 AM.


Clinton J. Guthrie, J.

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