DE LA ROSA v. LANDUCCI (2021)

Appeal from “decision and order” (Marian C. Doherty, J.), entered July 16, 2019, deemed an appeal from the ensuing judgment (same court and Judge), entered on or about July 24, 2019, and so considered (see CPLR 5520[c]), judgment affirmed, without costs.

Defendant's counterclaim for unpaid rent for the months of November 2016 through January 2017, due under a commercial lease, is not barred by res judicata, collateral estoppel or the prohibition against claim splitting. Inasmuch as the issues relating to plaintiff-tenant's nonpayment of rent for any month after October 2016 had not matured when defendant-landlord commenced the summary nonpayment proceeding against plaintiff in October 2016, and consequently had not been litigated or decided therein, the counterclaim is not barred by the determination in that proceeding (see UBS Sec. LLC v Highland Capital Mgt., L.P., 159 AD3d 512, 513-514 [2018], lv dismissed 32 NY3d 1080 [2018]; Sannon-Stamm Assoc., Inc. v Keefe, Bruyette & Woods, Inc., 68 AD3d 678 [2009]).

Per Curiam.

All concur