Opinion
61638/19
08-13-2019
Louis DICAMILLO, Petitioner, v. Michael ACEVEDO, Valarie Santiago, and Ashley Perez, Respondents-Tenants
Petitioner's attorneys: Benjamin M. Meskin, Esq., 117 11th Street, Suite 209, Brooklyn, New York 11215, (718) 246-1725 Respondents' attorneys: The Legal Aid Society, 111 Livingston Street, 7th floor, Brooklyn, New York 11201, (718) 422-2841
Petitioner's attorneys: Benjamin M. Meskin, Esq., 117 11th Street, Suite 209, Brooklyn, New York 11215, (718) 246-1725
Respondents' attorneys: The Legal Aid Society, 111 Livingston Street, 7th floor, Brooklyn, New York 11201, (718) 422-2841
David A. Harris, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of respondent's motion for leave to interpose an amended answer, and petitioner's cross-motion to strike affirmative defenses upon amendment, and for leave to amend the petition.
Papers Numbered
Notice of motion & Affidavits Annexed 1
Notice of Cross-motion and Affidavits Annexed 2
Answering Affidavits 3
Replying Affidavits 4
Exhibits
Other
Upon the foregoing cited papers, the Decision and Order on this Motion is as follows:
After the expiration of a lease on March 31, 2019, petitioner commenced this summary proceeding seeking to recover possession of the second floor apartment (Apartment) in the building located at 1949 72nd Street, in Brooklyn (Building). The proceeding initially appeared on the court's calendar on April 23, 2019. Prior to that date, respondent Valarie Santiago interposed a written answer alleging improper service of the petition and notice of petition, that the landlord had not sought to collect rent and that respondent had a proceeding pending because of violations in the Apartment, presumably of the Housing Maintenance Code.
On April 23, 2019, the matter was adjourned to May 23, 2019, and adjourned again, with a notation that the adjournment was final for trial. Respondent, prior to the adjourned date of June 21, 2019, interposed the instant motion, and thereafter, petitioner interposed the cross-motion.
Respondent's motion to interpose an amended answer is unopposed and is accordingly granted, and the proposed amended answer is deemed served and filed. The amended answer sets forth defenses of lack of personal jurisdiction, retaliatory eviction, improper claims that the Building is not a multiple dwelling, the lack of a certificate of occupancy barring the collection of rent, breach of the warranty of habitability, and counterclaims for an abatement of rent, for the correction of violations of the Housing Maintenance Code, and for attorney's fees.
Petitioner moves to strike the defense of lack of personal jurisdiction, and moves to amend the petition to reflect that the apartment petitioner seeks to recover is the 2nd floor front apartment, rather than the second floor apartment, and that the Apartment, while not subject to rent regulation, but that the Building is a multiple dwelling containing three apartments, and seeks to amend the demand for use and occupancy to demand it through June, the month in which the motion was prepared.
Respondent asserts that the amendments to the description of the premises served is meritless because implicit in the amendment is an admission of improper service, a defense petitioner asserts has been waived. Respondent has not opposed petitioner's motion to the extent that it seeks amendment of paragraph six of the petition to read "The premises is not subject to New York State and New York City rent regulation laws but is subject to the New York State Multiple Dwelling Law, as the building where the premises is located consists of three legal apartments only, and respondents have resided thereat since on or after 2010" and the petition, without opposition, is so amended. Respondent has not objected to amendment of the ninth paragraph of the petition to read as follows: "In addition, respondents owe petitioner use-and-occupancy in the amount of $4050 for April 2019, May 2019 and June 2019 @ $1350.00 per month" or amendment of the final paragraph of the petition to replace "$1350" with "$4050" and without opposition the petition is so amended.
The central issue here is whether respondent's assertion of counterclaims functioned as a waiver of the right to challenge the court's personal jurisdiction. It has been held that:
The issue before us is whether the defendant waived his jurisdictional defense by bringing an "unrelated" counterclaim. The Appellate Divisions have developed a rule that interposing a counterclaim related to plaintiff's claims will not waive the defense of lack of personal jurisdiction, but that asserting an unrelated counterclaim does waive such defense because defendant is taking affirmative advantage of the *59 court's jurisdiction (see, Prezioso v. Demchuk, 127 AD2d 576, 511 N.Y.S.2d 375, lv. dismissed, 70 NY2d 1002, 526 N.Y.S.2d 438, 521 N.E.2d 445 ; Liebling v. Yankwitt, 109 AD2d 780, 781, 486 N.Y.S.2d 292 ).
We agree with the underlying rationale of such rule and now adopt it. We clarify, however, that a counterclaim will only be "related" for these purposes when such counterclaim could potentially be barred under principles of collateral estoppel—where the parties or their privies are the same and where the issues in the plaintiffs' claims are potentially identical and decisive of issues raised in the counterclaims (see, Gramatan Home Investors Corp. v. Lopez, 46 NY2d 481, 486, 414 N.Y.S.2d 308, 386 N.E.2d 1328 ).
( Textile Tech. Exch., Inc. v. Davis , 81 NY2d 56, 58-59 [1993] ). Thus, the assertion of related counterclaims is no bar to a defense of lack of personal jurisdiction, while the assertion of unrelated counterclaims, those not be barred by collateral estoppel, precludes a defense of lack of personal jurisdiction.
Here respondent's first counterclaim seeks an abatement in a proceeding in which petitioner has asserted a claim for use and occupancy. Petitioner concedes that the assertion of that counterclaim does not effect a waiver of the defense of lack of personal jurisdiction.
Petitioner asserts that the counterclaim for repairs alleged to be needed as a consequence of the breach of the warranty of habitability is an unrelated counterclaim. A tenant no longer in possession lacks standing to maintain an HP action for the correction of violations (Elsheikh v. 76th Street Owners Corp. , 36 Misc 3d 139[a] [App Term 2d, 11th & 13th Jud Dists]). The salient regulation provides that:
"[s]hould the department fail to issue a notice of violation upon the request of a lawful occupant or group of lawful occupants within thirty days of the date of such request, or if there is a notice of violation outstanding respecting the premises in which the lawful occupant or group of lawful occupants resides, or, if there is a claim of harassment pursuant to subdivision d of section 27-2005 of this chapter, the lawful occupant or any group of lawful occupants, may individually or jointly apply to the housing part for an order directing the owner and the department to appear before the court."
(New York City Admin Code § 27-2115[h][1] ). If respondent, while in possession, is found not to be a lawful occupant of the Apartment, that finding would preclude respondent from commencing an action for the correction of violations of the Housing Maintenance Code. The counterclaim, therefore, is one that could be deemed waived if not asserted in this proceeding and does not function to waive respondent's defense of lack of personal jurisdiction.
Respondent asserts that a variety of courts have precluded the recovery of attorney's fees by tenants not sought in the action in which they were incurred. Respondent's reliance on Wavertree Corp. v. 136 Waverly Assocs. (258 AD2d 392 [App Div 1st Dept 1999] ) is misplaced. Wavertree involved an action by a landlord seeking to recover taxes due under tenant's lease, in which the court struck claims for attorney's fees arising from two prior proceedings commenced by the landlord. A landlord is plainly barred from the recovery of attorney's fees except in the proceeding in which they were incurred ( 930 Fifth Corporation v. King , 42 NY2d 886 [1977] ).
Respondent further asserts that it could be barred from recovery of attorney's fees in a subsequent action because "the prohibition against the splitting of causes of action required plaintiff to seek attorneys' fees within the action in which they were incurred, not a subsequent action (see Wavertree Corp. v. 136 Waverly Assocs., 258 AD2d 392, 685 N.Y.S.2d 693 [1999], citing 930 Fifth Corp. v. King, 42 NY2d 886, 397 N.Y.S.2d 788, 366 N.E.2d 875 [1977] )." ( O'Connell v. 1205-15 First Ave. Assoc., LLC , 28 AD3d 233, 234 [1st Dept 2006] ). O'Connell , however, is readily distinguishable on its facts, as it involved interpretation of a lease "providing that ‘[t]he successful party in a legal action or proceeding between Landlord and Tenant for non-payment of rent or recovery of possession of the Apartment may recover reasonable legal fees and costs from the other party.’ " (Id. ) The rationale for the decision arises from interpretation of a lease clause, and the well-established precedent that a claim for attorney's fees arising under the lease must be interposed in the same proceeding arising under that lease in which the fees are incurred.
The counterclaim for attorney's fees that petitioner asserts has resulted in the waiver of respondent's jurisdictional defense does not arise under the lease. Rather, respondent's counterclaim states that "[r]espondent seeks the reasonable attorney's fees, costs and disbursements incurred in this proceeding, in an amount to be determined by the Court, pursuant to the Real Property Law § 234." The court notes that none of the precedent relied upon by respondent interprets that provision of law, as it had no application to the claims for attorney's fees involved in those proceedings.
Real Property Law § 234, as it existed at the time this case was commenced provides that:
Although RPL § 234 was amended by the Housing Stability and Tenant Protection Act of 2019, the amendment is without effect in this proceeding, commenced prior to the effective date of that act (Housing Stability and Tenant Protection Act. (Housing Stability and Tenant Protection Act, 2019 Sess. Law News of NY Ch. 36 (S. 6458) [McKinney's] )
"recover attorneys' fees and/or expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease, or that amounts paid by the landlord therefor shall be paid by the tenant as additional rent, there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorneys' fees and/or expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease, and an agreement that such fees and expenses may be recovered as provided by law in an action commenced against the landlord or by way of counterclaim in any action or summary proceeding commenced by the landlord against the tenant.
(former Real Property Law § 234 ). The statutory language unequivocally and explicitly permits the recovery of attorney's fees by a tenant either by counterclaim or through the commencement of a plenary action. Because respondent has a statutory right, to commence a plenary action for the recovery of attorney's fees, the claim is not one that could be barred by collateral estoppel and is therefore an unrelated counterclaim ( Textile Tech. Exch., Inc. v. Davis , 81 NY2d at 58-59 ).
Respondent's assertion of a counterclaim for attorney's fees in this proceeding functioned as a waiver of respondent's defense of lack of personal jurisdiction. Petitioner's motion to strike respondent's first affirmative defense is therefore granted and the defense is stricken.
Respondent's opposition to amendment of the petition was grounded in claims that the amendments were tantamount to an admission of lack of personal jurisdiction. Since that defense has been stricken, personal jurisdiction is no longer at issue in this proceeding. When a party seeks amendment of pleadings, "leave shall be freely given upon such terms as may be just." ( CPLR 3025 ). In the absence of prejudice, the branch of petitioner's motion seeking leave to amend the petition is granted. Petitioner has not annexed a proposed amended petition.
Respondent's motion to interpose an amended answer is granted. The branch of Petitioner's cross-motion to strike the first affirmative defense in the amended answer is granted, and the branch of petitioner's cross-motion seeking to amended the petition is granted, with petitioner directed to serve an amended petition on respondent's counsel within ten days of the date of this decision, and respondent is granted leave to interpose a second amended answer to the amended petition within 10 days of its receipt. This matter will next appear on the calendar in Part J on September 12, 2019 at 9:30 AM.
This is the decision and order of the court.