Opinion
88739/07.
Decided May 6, 2008.
Horing Welikson Rosen, P.C. 11 Hillside Avenue Williston Park, NY 11596.
(516) 535-1700Northern Manhattan Improvement Corp. Legal Services 76 Wadsworth Avenue New York, NY 10033 (212) 822-8300.
In this summary nonpayment proceeding the respondent initially appeared pro se and filed an answer raising a number of defenses including lack of jurisdiction, partial payment, and conditions in need of repair; she requested an inspection. The respondent thereafter retained counsel and now moves for leave to file an amended answer.
The proposed amended answer is fifty-nine paragraphs and twenty-two pages long, and includes two affirmative defenses and four counterclaims. Paragraphs two through twenty-one allege facts in support of respondent's claim that petitioner has violated New York City's Lead Laws [The New York City Childhood Lead Poisoning Prevention Act, Local Law 1 of 2004 (LL1/2004), Administrative Code § 27-2056.1 et seq., and implementing regulations at 28 RCNY Chapter 11]. Paragraphs two through twenty-eight allege facts in support of the respondent's claim that the petitioner has violated the Federal Lead Disclosure Law ( 42 USC § 4852d and implementing regulations at 24 CFR Part 35 Subpart A and 40 CFR Part 745 Subpart F). Paragraphs twenty-nine through thirty-nine allege violations in need of repair in the subject premises including mold, roaches, bedbugs, leaks broken plaster and sloping floors.
The respondent's first affirmative defense states that the landlord breached the warranty of habitability; it alleges that the respondent is relieved of the obligation to pay rent since the landlord had knowledge of the conditions but failed to remedy them. The respondent's second affirmative defense states that the petitioner's failure to provide necessary services and correct the conditions constitutes a breach of the rental agreement as a result of which the respondent is relieved of the obligation to pay rent. The respondent's first counterclaim seeks a rent abatement based upon the breach of the warranty; the second counterclaim seeks an abatement based upon the breach of the contract; the third counterclaim seeks an order to correct violations, make necessary repairs, and comply with obligations pursuant to the New York City Civil Court Act § 110 (c) and LL1/2004; and the fourth counterclaim seeks treble damages and attorney's fees based upon petitioner's alleged breach of the Lead Disclosure Law.
In opposition to the motion the petitioner submits only an affirmation from counsel. The affirmation claims that the first affirmative defense is not properly pled and the second fails to raise any claim for which relief can be granted. The affirmation is silent as to the first and second counterclaims. The petitioner opposes the third counterclaim asserting the court lacks jurisdiction to grant the relief with respect to ordering compliance with LL1/2004, and opposes the fourth counterclaim asserting it fails to state a claim for which relief can be granted.
CPLR § 3025(b) states that leave to amend a pleading shall be freely given "upon such terms as may be just. . . ." Whether to grant a motion to amend a pleading is a matter "committed almost entirely to the court's discretion to be determined on a sui generis basis, with the widest possible latitude being extended to the court." Murray v City of New York, 43 NY2d 400, 404-405, (1977). Leave to amend a pleading should be "freely given absent prejudice or surprise resulting from the delay." Valdes v Marbrose Realty, Inc., 289 AD2d 28, 29, (1st Dep't 2001). The proposed amended pleading should be permitted unless it is "patently insufficient on its face." Hospital for Joint Diseases Orthopaedic Institute v James Katsikis Environmental Contractors, Inc. et al, 173 AD2d 210 (1st Dep't 1991). Here, the petitioner fails to submit an affidavit raising any alleged prejudice or surprise, and the affirmation from counsel for petitioner is silent on the issue as well. Absent any claim of prejudice or surprise, and since the proposed amended answer is not "patently insufficient on its face," the respondent's motion for leave to serve and file the amended answer annexed as Exhibit A is granted.
The Court notes that petitioner would be hard pressed to claim surprise as to the alleged conditions in the respondent's apartment. In prior litigation between the parties, this court found that there were "well documented habitability claims" as well as class "C" violations for lead paint. 601 West Realty LLC v. Norma Chapa, 2003 NY Slip Op. 51253U (Civ.Ct. NY Cty.). In the instant proceeding, the respondent's pro se answer alleged that there were conditions in need of repair, and the respondent requested an inspection specifically alleging inter alia, lead paint. The inspection report from the Department of Housing Preservation and Development ("DHPD"), available prior to respondent retaining counsel contains, inter alia, eight "C" violations for lead-paint hazards in respondent's apartment.
The petitioner's claim that the portion of respondent's third counterclaim seeking compliance with Local Law 1 [Admin. Law § 27-2056.3] is misplaced and improper is not persuasive. Pursuant to New York City Civil Court Act § 110(a) the express purpose of the Housing Part is "for the establishment and maintenance of housing standards, including, but not limited to, the multiple dwelling law and the housing maintenance code, building code and health code of the administrative code of the city of New York. . . ."
The issues raised by the respondent's amended answer are strikingly similar to those raised by the respondent in Graham Court Owners Corp. v Powell, 196 Misc 2d 825 (Civ.Ct. NY Cty. 2003). In Graham the respondent moved for leave to file an amended answer and for disclosure of the landlord with respect to prior knowledge of lead hazards in the subject premises. The Court granted the motion allowing both the amendment of the answer and the discovery, and specifically rejected the petitioner's claim that the federal court had exclusive jurisdiction over the lead disclosure claims.
In Graham Court Owners Corp. v Powell, 9 Misc 3d 94, (AT 1st Dep't. 2005), the Appellate Term modified the lower court decision to the extent of severing the fifth counterclaim for a plenary action. The Appellate Term decision specifically upheld the lower court's decision to permit the amendment holding that the "court's discretionary grant of the tenant's motion to amend her initial, pro se answer to include a counterclaim based upon the landlord's alleged violation of federal lead-paint disclosure requirements (citation omitted) was consistent with the general rule favoring amendments of pleadings in the absence of prejudice or surprise. . . ." In addition, the Appellate Term found that the landlord's argument that the federal courts have exclusive jurisdiction over the statutory issues raised "is lacking in merit."
It appears to this Court that in severing the fifth counterclaim the Appellate Term was concerned about judicial economy since inclusion of the counterclaim "may well entail considerable disclosure and attendant delay." In addition, the Court noted that the petitioner's alleged violation of the duty to disclose known lead hazards was not inextricably related to the central issue in the case. In the instant case, the respondent is not seeking disclosure and there will be no delay in allowing the amendment. Given the history of the litigation between the parties herein and the well-documented existence of lead hazards in the prior litigation, judicial economy needs are best served by allowing the claims to proceed here. In addition, the respondent seeks an abatement of rent based upon the alleged breach of the warranty of habitability and, pursuant to the alleged violation of the lead disclosure law, seeks to treble that amount. The issue of what, if any rent the respondent will ultimately owe to the petitioner is inextricably intertwined with the landlord's claim of nonpayment, to wit, the central issue in this proceeding. Analogizing to a tenant's right to recover an overcharge award by offsetting the amount of the award against the landlord's claim for rent, see e.g., Olton v Hunter, 3 Misc 3d 133A (AT 1st Dep't 2004), should it be determined that the respondent is entitled to an abatement and treble damages, she may recover the amount as an offset against rent.
For all the foregoing reasons, respondent's motion for leave to serve and file the verified amended answer is granted, and the amended answer is deemed served and filed as of the date of this decision. The matter is restored to the Part E calendar on June 2, 2008, at 9:30 a.m.
This is the decision and order of the court, copies of which are being mailed to the parties indicated below.