Opinion
No. 570061/11.
2012-06-25
22L EAST 78TH TENANTS CORP., Petitioner–Landlord–Cross–Appellant, v. Donald A. COHEN, Respondent–Tenant–Appellant.
Tenant appeals from that portion of an order of the Civil Court of the City of New York, New York County (Brenda S. Spears, J.), entered November 10, 2010, which denied his motion for summary judgment dismissing the petition and for partial summary judgment on his counterclaim for attorneys' fees in a nonpayment summary proceeding. Landlord cross-appeals from so much of the aforesaid order as denied its cross motion for summary judgment dismissing tenant's defense founded upon Multiple Dwelling Law § 302–a.
Present: SHULMAN, J.P., HUNTER, JR., TORRES, JJ.
PER CURIAM.
Order (Brenda S. Spears, J.), entered November l0, 2010, insofar as appealed from, affirmed, without costs, on condition that tenant, if he has not already done so, deposit $27,292.36 with the Clerk of Civil Court, within 10 days after service of a copy of this order with notice of entry. Upon tenant's failure to comply with this condition, the order appealed from is modified, without costs, and landlord's cross motion to strike the defense founded upon Multiple Dwelling Law § 302–a is granted.
We conditionally sustain the denial of landlord's cross motion to strike tenant's defense founded upon the rent forfeiture provisions of Multiple Dwelling Law § 302–a. On this record, and considering that tenant, through his guardian ad litem, appears to have placed funds in escrow sufficient to cover the rent sought in the nonpayment petition, his failure to timely comply with the formal rent deposit requirement of the statute ( seeMDL § 302–a[3][a] ) should not serve to preclude him from pursuing the otherwise facially meritorious, “fundamental” defense ( see 46 E. 91st St. Assocs., LLC v. Bogoch, 23 Misc.3d 36 [2009] ).
With respect to the main motion, we agree that tenant failed to demonstrate entitlement to judgment as a matter of law on either the rent forfeiture defense or his fifth counterclaim for attorney's fees. With respect to the latter, we note that tenant's application for attorney's fees was premature because the “ultimate outcome” of the dispute has not been reached and a determination of prevailing party status cannot be made ( see Wirth v. Chambers–Greenwich Tenants Corp., 87 AD3d 470 [2011] ). We reach no other issue.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.