PADIA v. TOHA (2023)

Judgment, Supreme Court, New York County (Nancy M. Bannon, J.), entered July 21, 2022, awarding plaintiff landlord money damages, and bringing up for review an order, same court and Justice, entered April 18, 2022, which granted in part plaintiff's motion for summary judgment on the first cause of action for unpaid rent for July and August 2018, unanimously affirmed, without costs.

The motion court properly granted plaintiff partial summary judgment under CPLR 3212(e)(1) on the claim for unpaid rent.  Defendant tenant failed to establish that he has been prejudiced by the entry of the judgment against him while his counterclaims are still pending (see Trans World Maintenance Servs., Inc. v. Luna Park Hous. Corp., 157 A.D.2d 586, 587–588, 550 N.Y.S.2d 332 [1st Dept. 1990]).  The record does not reflect circumstances in which defendant will be unable to recover from plaintiff, should he prevail on his counterclaims, that would warrant a stay of enforcement of the judgment until his counterclaims are resolved (see id.).  To the extent defendant may be entitled to a rent abatement based on the allegations in his counterclaims, those amounts can be determined at trial (see e.g. P62 LLC v. WFP Retail Co. L.P., 191 A.D.3d 583, 584, 143 N.Y.S.3d 333 [1st Dept. 2021]).  Contrary to defendant's contention, no attorneys' fees were awarded in the appealed order or judgment, and therefore his arguments as to whether plaintiff is entitled to attorneys' fees under the lease must also await trial (id.).

We have considered defendant's remaining contentions and find them unavailing.