Marbru Associates, et al., Plaintiffs–Appellants, v. William J. White, et al., Defendants–Respondents.

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Supreme Court, Appellate Division, First Department, New York.

Marbru Associates, et al., Plaintiffs–Appellants, v. William J. White, et al., Defendants–Respondents.

1178 9

Decided: February 20, 2014

Gonzalez, P.J., Tom, Saxe, Freedman, Manzanet–Daniels, JJ. Kaufman Friedman Plotnicki & Grun, LLP, New York (Howard Grun of counsel), for appellants. The Price Law Firm, LLC, New York (Joshua C. Price of counsel), for respondents.

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Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered April 16, 2013, which, insofar as appealed from, denied plaintiffs landlords' motion to direct defendants tenants to pay for use and occupancy of the subject apartment and granted defendants' cross motion for leave to amend their answer to assert an affirmative defense requesting transfer of this action to Civil Court and counterclaims for attorney's fees and for harassment and discrimination, unanimously modified, on the law, to grant plaintiffs' motion to the extent of awarding use and occupancy pendente lite at the rate of $1,595.53 per month, and awarding use and occupancy arrears retroactive to January 13, 2012, and remanding the matter for calculation of the amount of retroactive arrears, and otherwise affirmed, without costs.

Plaintiffs are entitled to an order requiring defendants to pay use and occupancy pending the determination of this action (see Levinson v. 390 W. End Assoc., L.L.C., 22 AD3d 397, 403 [1st Dept 2005];  MMB Assoc. v. Dayan, 169 A.D.2d 422 [1st Dept 1991] ).   The amount sought, $1,595.53 per month, is the amount of monthly rent under the last lease effective between the parties, and, as such, is fair (see Eli Haddad Corp. v. Redmond Studio, 102 A.D.2d 730, 731 [1st Dept 1984] ).   Plaintiffs are also entitled to an award of use and occupancy arrears as indicated (see Shoshany v. Goldstein, 20 Misc.3d 687, 689 [Civ Ct, N.Y. County 2008] ).

The motion court did not abuse its discretion in granting defendants leave to assert a request for transfer to Civil Court as an affirmative defense.   Whether the action should actually be transferred is a matter to be decided by Supreme Court, in its discretion, should either party affirmatively move for such relief.  “The Civil Court is the preferred forum for resolving landlord-tenant issues” (44–46 W. 65th Apt. Corp. v. Stvan, 3 AD3d 440, 441 [1st Dept 2004] ), and where, as here, the “primary relief sought is repossession of the premises,” the addition of a prayer for declaratory or equitable relief does not negate the presumption that Civil Court is the preferred forum (Waterside Plaza v. Yasinskaya, 306 A.D.2d 138, 139 [1st Dept 2003] [internal quotation marks omitted] ).

Since no party has produced a copy of the original lease, the motion court did not abuse its discretion in granting defendants leave to assert a counterclaim for attorney's fees hypothetically, “[i]n the event that” there is a lease between the parties “containing an applicable legal fees clause” (see CPLR 3014).   The motion court also providently exercised its discretion in granting defendants leave to amend their answer to assert a counterclaim for harassment and race-based discrimination.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK