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Decided: November 06, 2017

David I. Farber, General Counsel, New York City Housing Authority, for Petitioner. George C. Gardner III, Queens Legal Services, for Respondent.

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of the petitioner's motion for an order pursuant to CPLR 3211(a)(6) dismissing respondent's counterclaim and permitting petitioner to discontinue the proceeding and respondent's cross-motion pursuant to CPLR § 3025(b) for leave to file an amended answer.


Notice of Motion and Affidavits Annexed 1

Order to Show Cause and Affidavits Annexed

Answering Affidavits 3

Replying Affidavits

Cross–Motion 2

Upon the foregoing papers, the Decision /Order on this motion is as follows:


Petitioner commenced the instant nonpayment proceeding by notice of petition and petition. The petition alleges that respondent owed $1,074.50 through April 2016. Respondent failed to answer the pleadings and petitioner was awarded a default judgment. On June 19, 2017, respondent moved, by counsel, to vacate the judgment alleging that her default was due to the fact that she is a victim of domestic violence and was locked out of the subject apartment by her abuser. Respondent further alleged that the rent sought in the pleadings had been paid. Respondent subsequently filed an answer with counterclaims for breach of the warranty of habitability and violation of housing standards. On July 17, 2017, the Court granted the order to show cause, amended the petition to date and adjourned the case for trial. Petitioner now moves to discontinue the proceeding and dismiss the counterclaims. Respondent opposes dismissal and cross-moves to file an amended answer.


Petitioner argues that dismissal is warranted because, since this start of the case, it has received payments which exceed the amount sought in the petition. In August 2016 respondent was given a credit of $1,393.00 and in June 2017 the Department of Social Services (“DSS”) paid $4,011.50 on her behalf. Petitioner further argues that, in seeking to continue the proceeding, respondent is attempting to obtain an affirmative judgment against the City without filing a notice of claim as required by the New York City Administrative Code.

Respondent argues that her counterclaims do not seek an affirmative judgment and thus do not trigger the notice of claim requirement. Respondent notes that in City of New York v. Jones, NYLJ, May 28, 1992 at 24, col 5, [2nd Dept] the Appellate Term denied the City of New York's motion to dismiss the tenant's breach a warranty of habitability counterclaim reasoning that RPL 235–b provides a tenant with the right to make such claim against any landlord. As to petitioner's request to discontinue, respondent argues that since the petition was amended pursuant to the July 17, 2017 Court order, it has not been satisfied and thus she is entitled to a rent offset. Lastly, respondent asserts that by discontinuing this case petitioner is seeking to prevent her from satisfying the balance due on her account while it proceeds with a termination hearing based on nonpayment of rent. Respondent argues that discontinuance would ensure that the disputed arrears survive until the administrative hearing.

A party asserting a claim may discontinue it without court order at any time before a responsive pleading is served. CPLR 3217(a). However, once a pleading is served discontinuance must be by order of the court and upon such terms and conditions as the court deems proper. CPLR 3217(b). Generally, a court will not compel a party to continue a litigation except when substantial rights of other parties have accrued, and injustice will be done to them by permitting the discontinuance. Winans v. Winans, 124 N.Y. 140 [Ct App 1891].

Here there is a possibility that respondent could be prejudiced if the proceeding is discontinued. Respondent raised breach of warranty of habitability as a defense and counterclaim in her original answer prior to petitioner's motion. Moreover, a review of her rent history (Exhibit 1 of the Motion) indicates that respondent had a balance after the petition was amended and the above credits applied to her account. In addition, petitioner does not dispute the fact that it has commenced an administrative proceeding to terminate respondent's tenancy based on her failure to pay the rent. The allegations in that proceeding must certainly include the rent claims in this case. To the extent that respondent may have defenses to these claims, it would be prejudicial to deny her the opportunity to assert them.


Based on the foregoing, the motion is denied. The cross-motion is granted. The Amended Answer annexed hereto is deemed served and filed. The matter is hereby adjourned to December 18, 2017 at 9:30 am for settlement or trial.

This constitutes the decision and order of the Court.


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