Opinion
Index No. 338807-2022
06-30-2023
RIVERBAY CORP., Petitioner, v. Stanley FRERE, Respondent-Tenant, "John Doe" & "Jane Doe," Respondent-Undertenants.
RECITATION, AS REQUIRED BY CPLR 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION BY THE RESPONDENT TO DISMISS THE CASE ( CPLR § 3211(A)(7) ) AND/OR SUPPRESS ALLEGEDLY IMPROPERLY OBTAINED EVIDENCE ( CPLR § 3103 ) AND PETITIONER'S CROSS-MOTION SEEKING TO DISMISS RESPONDENT'S THREE COUNTERCLAIMS ( CPLR § 3211(A)(7) & (A)(1) ) AND STRIKING THE FIRST THROUGH FIFTH DEFENSES AND FIRST, SECOND AND THIRD AFFIRMATIVE DEFENSES ( CPLR § 3211(B) ):
NOTICE OF MOTION, AFFIDAVIT IN SUPPORT, AFFIRMATION IN SUPPORT AND SUPPORTING EXHIBITS: NYSCEF Documents No. 10 through 16.
CROSS-MOTION, AFFIRMATION IN SUPPORT, AFFIDAVIT IN SUPPORT AND SUPPORTING EXHIBITS: Documents # 17 through 24.
RESPONDENT'S REPLY AFFIRMATION AND EXHIBIT: Documents 25 and 26.
PETITIONER'S REPLY AFFIRMATION: Document # 27.
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:
BACKGROUND AND PROCEDURAL POSTURE
The April 22, 2022 Notice to Cure and Demand for Access alleges that Stanley Frere (respondent) has:
"...amassed an unreasonable amount of clothing, debris, boxes, plastic bags, papers, personal items and garbage in the apartment to the point where the unit is so filled with such items as to make access into and navigation throughout the apartment dangerous and impracticable. Such accumulation which includes inflammable materials, piled several feet high throughout the apartment, interferes substantially with your safety, comfort and well-being as well as that of the occupants and members of the housing complex of which the apartment forms a part in that same constitutes a substantial fire hazard." (see notice to cure at NYSCEF Doc. 1, pg. 6-19).
Attached to the notice to cure are eight (8) photos, which purport to show "typical examples of the manner in which you maintain the apartment." (id. ). The notice requires cure by July 7, 2022 and demands that respondent provide access to the landlord's personnel between 9AM and noon on July 8, 2022, the first business day after the cure period expires. (id. ).
The September 9, 2022 notice of termination alleges that respondent failed to comply with the notice to cure and demand for access. Petitioner alleges that the respondent did not provide access to the apartment as demanded and did not cure the conditions described in the notice to cure. (see Notice of Termination at NYSCEF Doc. 1 pg. 5-6).
Respondent now moves to dismiss the proceeding under CPLR § 3211(a)(7), arguing that the petition fails to state a cause of action. Respondent also moves under CPLR § 3103 to suppress the photographs attached to the notice to cure alleging that they were improperly obtained without his permission.
Petitioner opposes the motion and cross-moves to dismiss and/or strike counterclaims, defenses, and affirmative defenses from respondent's answer.
DISCUSSION
Suppressing Evidence
CPLR § 3103(c) states, "If any disclosure under this article has been improperly or irregularly obtained so that a substantial right of a party is prejudiced, the court, on motion, may make an appropriate order, including an order that the information be suppressed."
The photographs in question were taken prior to commencement of this case and do not implicate court ordered discovery/disclosure. The court addresses the issue assuming arguendo that CPLR § 3103 is applicable.
Respondent argues that the photographs taken on June 18, 2021 were taken without permission when petitioner's agents entered the apartment, also without respondent's permission, to install a smoke detector.
Respondent, as movant, must establish that the photographs were obtained improperly or irregularly. (see Project Veritas v New York Times Company , 74 Misc 3d 515, 521 [Sup Ct, Westchester County 2021] ). Respondent argues that petitioner's actions violate sections 27-2008 of the Housing Maintenance Code and 25-101 of the Rules of New York.
§ 27-2008, titled "Owner's right of access" states in relevant part,
No tenant shall refuse to permit the owner, or his or her agent or employee, to enter such tenant's dwelling unit or other space under his or her control to make repairs or improvements required by this code or other law or to inspect such apartment or other space to determine compliance with this code or any other provision of law, if the right of entry is exercised at a reasonable time and in a reasonable manner.
This provision only requires that an owner enter a unit "at a reasonable time and in a reasonable manner" to "make repairs required by this code." Critically, respondent does not dispute that petitioner had been trying to arrange access for some time to install smoke and carbon monoxide detectors or that a smoke and carbon monoxide detectors were required to be installed in his apartment. (see respondent's affidavit at NYSCEF Doc. 11 and Echevarria affidavit at NYSCEF Doc. 19). In other words, hazardous conditions existed in respondent's apartment and the petitioner arranged access to correct them.
The Appellate Division, First Department has made it clear that a landlord may enter an apartment under such circumstances. Indeed, a landlord has a duty to do so. (see Rivas v 1340 Hudson Realty Corp. , 234 AD2d 132, 135-136 [1st Dept. 1996] ("where a landlord retains the right to enter its leased premises, it may then be charged with constructive notice of a hazardous defect upon those premises. Such a right of entry is provided in the Administrative Code for the purpose of enabling a landlord to comply with Code provisions generally (Section 27—2008), and a landlord retains the right of entry for that purpose."); see also Juarez by Juarez v Wavecrest Management Team, Ltd. , 88 NY2d 628 [1996] ).
That respondent would have preferred access at another time [he does not state what alternative date(s) he offered] hardly matters under these circumstances. After all, it is petitioner that could be blamed [and perhaps held liable] if the respondent or any other building occupant or employee were injured or killed by a fire because there was no working smoke detector in the respondent's apartment that might have warned of the coming danger. (see Cristescu v Gasparis , 148 AD3d 669 [2nd Dept. 2017] ; Department of Housing Preservation and Development of City of New York v Metropolitan Ave. Corp. , 148 Misc 2d 956, n.2 [Civ Ct, Kings County 1990] ("Violations involving the absence of smoke detectors, whether in vacant or occupied apartments, affect the safety of all its occupants and users. The absence of smoke detectors gravely endangers life and property.")). This is especially true given the state of the apartment shown in the photographs. Consequently, petitioner properly accessed the apartment under § 27-2008. (see Osman v Kirschenbaum , 24 Misc 3d 143(A) [App Term, 1st Dept. 2009] (landlord should have been provided "immediate access" to abate violations found in tenant's apartment).
When requesting access under § 27-2008, NYCRR § 25-101 specifies the form and timing of notice to the tenant. Respondent's quarrel with petitioner's notice comes down to the fact that the notice did not state petitioner's agents would take photographs.
Clearly, petitioner's agents were within their right to access the apartment. Respondent does not cite to any case law holding that a landlord may not take photographs when lawfully inside a tenant's apartment. Nor does the Administrative Code provision or NYCRR provision cited specifically prohibit photography. After all, it makes perfect sense for landlords, tasked with maintaining residential units, to document their efforts to comply with relevant laws and codes.
In any event, "absent some constitutional, statutory, or decisional authority mandating the suppression of otherwise valid evidence, such evidence will be admissible [in a civil action] even if procured by unethical means." ( Radder v CSX Transp., Inc. , 68 AD3d 1743, 1744-1745 [4th Dept. 2009], quoting Heimanson v Farkas , 292 AD2d 421, 422 [2nd Dept. 2002] ("New York follows the common-law rule that the admissibility of evidence is not affected by the means through which it is obtained"); see also Mosallem v Berenson , 76 AD3d 345, 352-353 [1st Dept. 2010] ).
Indeed, photographs, even those "obtained by deceptive or unethical means," have been admitted into evidence in summary proceedings like this one. (see Alonso v Perichon , 11 Misc 3d 127(A), 1 [App Term, 1st Dept. 2006] (nuisance holdover partly based on accumulation of extremely flammable materials); see also 244 East 78 LLC v Emerson , 2002 NY Slip Op 50440(U) [App Term, 1st Dept. 2002] (even evidence obtained following a technical trespass admissible in nuisance holdover)).
Sufficiency of the Predicate Notices
Respondent further argues that dismissal is required under CPLR § 3211(a)(7) because the pleadings do not state any facts after the notice to cure, the implication being that the petitioner does not know whether the respondent cured.
On a motion to dismiss the complaint pursuant to CPLR § 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. (see Leon v Martinez , 84 NY2d 83, 87, 638 NE2d 511 [1994] ; Breytman v Olinville Realty, LLC , 54 AD3d 703, 703-704, 864 NYS2d 70 [2nd Dept. 2008] ). A CPLR 3211 (a) (7) motion "must be denied ‘unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it.’ " ( Sokol v Leader , 74 AD3d 1180, 1182, 904 NYS2d 153 [2nd Dept. 2010]quoting Guggenheimer v Ginzburg , 43 NY2d 268, 275, 401 NYS2d 182 [1977] ).
A predicate notice is sufficient if it is reasonable in view of all attendant circumstances. (see 542 Holding Corp v Prince Fashions, Inc , 46 AD3d 309, 310, 848 NYS2d 37 [1st Dept. 2007] ; Oxford Towers Co, LLC v Leites , 41 AD3d 144, 837 NYS2d 131 [1st Dept. 2007] ). Here, advising respondent to "cure" the violations of the occupancy agreement—the accumulation of various material—by a date certain is sufficient. A cure occurs when the specified violations cease. (see Woodlawn 278-305, LLC v Barnett , 72 Misc 3d 1208(A), *6, 2021 NY Slip Op 50675(U) [Civ Ct, Bronx County 2021] ; see also Westhampton Cabins & Cabanas Owners Corp. v Westhampton Bath & Tennis Club Owners Corp. , 62 AD3d 987, 988, 882 NYS2d 124 [2nd Dept. 2009] [emphasis added] citing Domen Holding Co. v Aranovich , 1 NY3d 117, 769 NYS2d 785 [2003] ("A notice to cure that forms the basis for a petition initiating a holdover proceeding must set forth sufficient facts to establish grounds for the tenant's eviction, and inform the tenant as to how the tenant violated the lease, as well as the conduct required to prevent eviction. ").
Respondent raises no objection to the notice to cure in the motion. Rather, respondent alleges the notice of termination is defective because it does not allege any objectionable conduct occurring after the notice to cure expired.
Respondent's factual statement is basically true—the notice of termination alleges that respondent did not cure the complained of conditions because "management observed no activity which would indicate you had taken any steps to comply with the Notice, and the presumption of continuance." (see Notice of Termination at NYSCEF Doc. 1).
Petitioner responds that the notices together are sufficient under the particular circumstances of this case because they allow the respondent to prepare a defense.
In view of all the attendant circumstances, the termination notice sufficiently alleges the respondent's failure to comply with the notice to cure. Though more specificity might be preferable, its absence is not necessarily fatal. (see McGoldrick v DeCruz , 195 Misc 2d 414, 415 758 NYS2d 756 [App Term, 1st Dept. 2003] ("A predicate notice in a holdover summary proceeding need not lay bare a landlord's trial proof, and will be upheld in the face of a ‘jurisdictional’ challenge where, as here, the notice is ‘as a whole sufficient adequately to advise ... tenant and to permit it to frame a defense’ ")).
While there is a line of cases that hold that a termination notice must state facts occurring after the notice to cure expires, this court disagrees that there is such a bright-line rule. In 1123 Realty LLC v Treanor , (62 Misc 3d 326, 332-333, 86 NYS3d 381 [Civ Ct, Kings County 2018] ), the court found the "reasonableness" standard (as noted in Hughes v Lenox Hill Hosp. , 226 AD2d 4, 18, 651 NYS2d 418 [1st Dept. 1996] ) is not susceptible to a bright-line rule. Rather, "reasonableness" is a fact-specific determination based on a totality of the circumstances.
This court has previously commented on why it believes the Treanor decision is correct. (see 985 Bruckner Blvd. Owners, LLC v Fuentes , 76 Misc 3d 1226(A) [Civ Ct, Bronx County 2022] ).
Here, the termination notice, in conjunction with the notice to cure, adequately apprises the tenant of the grounds upon which the case is based, thus permitting them to prepare a defense. (see 1123 Realty LLC v Treanor , 62 Misc 3d at 332 ; see also Jewish Theological Seminary of Am. v Fitzer , 258 AD2d 337, 338, 685 NYS2d 215 [1st Dept. 1999] ).
Given the relative detail of the allegations listed in the notice to cure, which was attached to the notice of termination and made a part thereof, (see Notice of Termination at NYSCEF Doc. 1), the termination notice meets the minimum standard of reasonableness.
This is not disputed by the respondent.
In Pinehurst Constr. Corp. v Schlesinger , the Appellate Division found that a notice of termination "setting forth no names, dates or specific instances of the misconduct," described "a nuisance ... with sufficient detail to have allowed tenant to prepare a defense." ( 38 AD3d 474, 475, 833 NYS2d 428 [1st Dept. 2007] ). More recently, the Appellate Term, First Department made it clear that termination notices just like the one challenged here are sufficient. (see Shwesinger v Perlis , 75 Misc 3d 135(A), 2022 NY Slip Op 50550(U) [2022] (internal citations omitted).
The June 8, 2018 notice to cure in Schwesinger [not to be confused with Schlesinger ] is eleven (11) pages and lists more than fifty (50) specific allegations of objectionable conduct occurring from 2013 through May 2018. (see NYSCEF Doc. 77 under Index No. 67376/18). The notice of termination lists the same conduct set forth in the notice to cure, and states,
PLEASE TAKE FURTHER NOTICE, that your tenancy of the Apartment is hereby terminated effective July 16, 2018, upon the grounds that you are violating a substantial obligation of your lease and tenancy and you have failed to cure such violation after written notice from the landlord dated June 8, 2018 (the "Notice to Cure") that the violation or violations cease by June 27, 2018, that date having been more than ten (10) days after service of the Notice to Cure (a copy of the Notice to Cure, together with proof of service is annexed hereto and made a part hereof. (NYSCEF Doc. 76 under Index No. 67376/18).
The notice of termination in Schwesinger contains no new facts. It merely alleges failure to comply with the notice to cure, a copy of which is attached to the notice of termination. The notice of termination here similarly contains no new facts while alleging non-compliance with the attached notice to cure. (see also 539 W 156, LLC v Hernandez , 55 Misc 3d 144(A) [App Term, 1st Dept. 2017] ("The notice to cure, which was incorporated by reference in the notice of termination, was reasonable in view of the attendant circumstances, as it fairly stated the nature of petitioner landlord's claim and the facts necessary to establish the existence of grounds for eviction."); compare 69 E.M. LLC v Mejia , 49 Misc 3d 152(A) [App Term, 1st Dept. 2015] (unparticularized allegations were too generic and conclusory to enable tenant to prepare a defense and otherwise satisfy the specificity requirement of Rent Stabilization Code).
None of the cases cited to by the respondent require dismissal. Each is either factually dissimilar, do not follow binding precedent from the First Department and/or cite to 31-67 Astoria Corp. v Landaira , (54 Misc 3d 131(A) [App. Term, 2nd & 11th Jud. Dists. 2017], for a broad rule the court does not establish therein.
The court agrees with the respondent that there is no cause of action for alleged failure to provide access. No portion of petitioner's case is based on the alleged failure to provide access. Rather, petitioner demanded access for the day after the notice to cure expired to see if respondent had, in fact, cured. In any event, petitioner has no leg to stand on regarding access not being provided because is it undisputed that petitioner's employees failed to attempt access on July 8, 2022 despite the notice to cure stating they would do so.
Alternatively, the court notes that respondent has so far resisted requests for access during this proceeding, so that petitioner might confirm respondent's claim that the apartment does not look like it did in the photographs attached to the notice to cure.
Consequently, respondent's motion to dismiss the proceeding and to suppress evidence is denied.
The court next turns to the petitioner's cross-motion to dismiss respondent's three counterclaims, striking the first through fifth defenses, and first through third affirmative defenses.
Dismissing Counterclaims
Petitioner moves to dismiss the counterclaims under CPLR §§ 3211(a)(1) and (a)(7) and cites to CPLR 3013, which states that "statements in a pleading shall be sufficiently particular to give the court and the parties notice of the transactions, occurrences or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense."
When seeking dismissal of counterclaims pursuant to CPLR § 3211, petitioner faces the same procedural hurdles as respondent did in their motion to dismiss the underlying claim, namely that "the court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference." ( EBC I, Inc. v Goldman, Sachs & Co. , 5 NY3d 11, 19, 832 NE2d 26 [2005] (internal citations omitted)). Whether the counterclaim can ultimately be established is not part of the calculus in determining a motion to dismiss. (id. ).
The First Counterclaim seeking suppression of photographs discussed supra does not state a cause of action. In any event, the court has already determined herein that suppression is unavailable and unwarranted. As such, the First Counterclaim is dismissed.
The Second Counterclaim alleges retaliatory eviction. Respondent alleges this case was commenced within a year of respondent asserting his rights as a tenant—namely "participating in the shareholder's board and making complaints about conditions in his apartment." (see Answer at NYSCEF Doc. 9, par. 26). This counterclaim is conclusory, fails to state supporting facts, such as what acts the respondent took as part of the board to which the petitioner objects [and thus retaliated for] and/or what conditions respondent complained about and when. Consequently, the second counterclaim is dismissed.
The Third Counterclaim alleges harassment under NYC Admin Code § 27-2005(d). Specifically, respondent claims (a) false accusations of no access and (b) entering respondent's apartment in violation of policies. The court has already found that petitioner did not violate any policy when it entered respondent's apartment, on notice, to install a smoke detector and carbon monoxide detector that respondent does not dispute needed to be installed. While there is a false accusation of no access in the notice of termination, this single accusation was acknowledged by the petitioner and this lone act cannot support harassment under the Admin Code. (see § 27-2004(a)(48)(g) ("other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace or quiet of any person lawfully entitled to occupancy of such dwelling unit and that cause or are intended to cause such person to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy.") [emphasis added]). The court notes that the answer is unverified and nowhere does respondent claim that the petitioner is harassing him. (see Fappiano v City of New York , 5 AD3d 627, 629, 2004 NY Slip Op 02161 [2nd Dept. 2004]citing Woodson v Mendon Leasing, Corp. , 100 NY2d 62, 71, 790 NE2d 1165 [2003] (In determining whether the plaintiff has a viable cause of action, the court may consider the pleadings in the action, affidavits, or affirmations submitted by the plaintiff]). Consequently, the third counterclaim is dismissed.
Striking Defenses and Affirmative Defenses
On a motion to dismiss affirmative defenses pursuant to CPLR § 3211(b), the petitioner must demonstrate that the defenses are without merit as a matter of law. (see 534 East 11th Street HDFC Corp. v Hendrick , 90 AD3d 541, 541 [1st Dept. 2011] ). In deciding a motion to dismiss a defense, the pleading should be liberally construed, and the respondent is entitled to the benefit of every reasonable inference. (see 182 Fifth Ave. v Design Dev. Concepts , 300 AD2d 198, 199 [1st Dept. 2002] ). A defense should not be stricken where there are questions of fact requiring trial. ( 87th Street Realty v Mulholland , 62 Misc 3d 213, 215 [Civ Ct, New York County 2018] ).
Defenses consisting of bare legal conclusions, however, are not afforded the benefit of every reasonable inference. (see Cavalry SPV I, LLC v Kings , 72 Misc 3d 980, 984 [Civ Ct, New York County 2021]citing Biondi v Beekman Hill House Apt., Corp. , 257 AD2d 76 [1st Dept. 1999] ). In fact, defenses containing no factual specificity will be stricken. (see 1691 Fulton Ave. Assocs., LP v Watson , 55 Misc 3d 1221(A), *6 [Civ Ct, Bronx County 2017]citing Robbins v Growney , 229 AD2d 356 [1st Dept. 1996] ; Carlyle, LLC v Beekman Garage LLC , 133 AD3d 510, 511 [1st Dept 2015] ; see also Mid-Hudson Valley Federal Credit Union v Quartararo & Lois , 155 AD3d 1218, 1219 [3rd Dept. 2017] (notwithstanding the CPLR's liberal pleading requirements, "bare legal conclusions with no factual specificity do not suffice to withstand a motion to dismiss.")). The court in Mid-Hudson Valley Federal Credit Union noted that CPLR § 3013 "requires that the pleading's statements be ‘sufficiently particular to give the court and parties notice of the transactions, occurrences or series of transactions or occurrences, intended to be proved.’ " [emphasis added]).
The First Defense is captioned "Defective Notice of Termination — Failure to State Facts Sufficient To State a Cause of Action for Nuisnace [sic] or Breach of Lease." The notice of termination, which incorporates the notice to cure, is sufficiently detailed for respondent to prepare a defense, as discussed supra. As to the allegation that the notice of termination does not specify the areas and items forming the clutter, the court notes that the notice to cure specifies that the clutter is throughout the apartment and specifies the materials include "clothing, debris, boxes, plastic bags, papers, personal items and garbage." While respondent may dispute these characterizations, the notices are sufficient. And while the unverified answer takes issue with the quality of the photographs previously discussed, respondent does not do so in his affidavit. Furthermore, respondent does not dispute petitioner's counsel's statement that the copies of photographs served on the respondent were clear and that they are only distorted on NYSCEF. Consequently, the first defense is dismissed.
The Second Defense—that the notice of termination fails to list facts subsequent to the notice to cure—is dismissed for the reasons stated supra.
The Third Defense alleges that the notice to cure is insufficient because "it fails to allege any specific incidents, facts or dates where Respondent did not provide access. Furthermore, it merely states in a conclusory fashion that "you must cure the aforementioned substantial violation of your Occupancy Agreement by the Cure Date" without stating in any detail what specific items would need to be removed or what areas of the apartment would need to become navigable in order to complete a cure." This is not a failure to provide access case. Access was demanded to verify a cure. In any event, petitioner admits it did not attempt access on the demanded access date. As such, the third defense is partly a defense to a claim that does not exist. As to the notice to cure being impermissibly conclusory, the court notes it has already found the notice to be reasonable under the circumstances. It hardly makes sense for petitioner to point out which specific items among the piled high "clothing, debris, boxes, plastic bags, papers, personal items and garbage" throughout the apartment needed to be removed. Consequently, the third defense is dismissed.
The Fourth Defense alleges the failure to give an opportunity to cure because petitioner did not attempt access on the demanded access date. This is not a defense to the cause of action. While respondent may claim he cured, the fact that petitioner did not inspect the apartment on a date certain did not deprive respondent of the opportunity to cure; it may have deprived him of the opportunity to demonstrate a cure. Consequently, the fourth defense is dismissed.
The Fifth Defense—that the alleged conduct does not constitute a breach of lease or nuisance—goes to the heart of the case. It remains petitioner's burden to prove the cause of action. Respondent, for his part, offers in his affidavit that the "photos are not an accurate depiction of the current state of my apartment. Since the photos were taken I have moved some of the belongings. I do not believe that the state of my apartment violates my occupancy agreement." (see NYSCEF Doc. 11, par. 11). He also alleges that an uncorrected leak caused him to pile property as depicted in the photographs. (id at par. 12). Consequently, the fifth defense is not dismissed.
Petitioner has not moved for summary judgment. But, in any event, there are enough issues of fact here that require a trial.
The First Affirmative Defense—Cure—is not dismissed. Petitioner here served a notice to cure, and to the extent that the condition is curable, respondent may be able to show that he cured. As such, the defense is not meritless as a matter of law.
The Second Affirmative Defense—that respondent should be given the opportunity to cure if petitioner can establish its claim—is not dismissed. Though this affirmative defense is arguably surplusage since the respondent could move for a post-trial stay to cure, (see e.g. Rockaway One Company, LLC v Califf , 194 Misc 2d 191, 193-194, 751 NYS2d 670 [App Term, 2nd Dept. 2002] ), dismissal is not required.
The Third Affirmative Defense—reasonable accommodation—is not dismissed. While not a defense, per-se , to petitioner's cause of action, respondent should have the opportunity to prove that he is disabled or handicapped and entitled to a reasonable accommodation which might afford him additional opportunities to cure to preserve his long tenancy. (see Matter of Prospect Union Assoc. v Dejesus , 167 AD3d 540, 543-544, 91 NYS3d 36 [1st Dept. 2018] ).
Respondent alleges in his affidavit that he is 74 and suffers from heart disease and stage 4 kidney disease.
CONCLUSION
Based on the foregoing, respondent's motion to suppress evidence is denied in all respects; respondent's motion to dismiss the proceeding is denied in all respects; petitioner's motion to strike or dismiss counterclaims and defenses is granted to the extent that each counterclaim is dismissed and the first through fourth defenses are dismissed; petitioner's motion is denied to the extent that the fifth defense and first through third affirmative defenses are not dismissed.
The case is adjourned to August 2, 2023 at 11:00 AM for a pre-trial conference. This constitutes the decision and order of the court. It will be posted to NYSCEF.
SO ORDERED.