Opinion
570376/06.
Decided September 29, 2006.
Defendants appeal from an order of the Civil Court, New York County (Matthew F. Cooper, J.), entered December 16, 2004, which denied defendants' cross-motion to dismiss the complaint and granted plaintiff's motion for summary judgment in the principal amount of $5,843.80.
Order (Matthew F. Cooper, J.), entered December 16, 2004, affirmed, with $10 costs.
PRESENT: McKEON, P.J., McCOOE, DAVIS, JJ.
The plaintiff-tenant established, prima facie, that the amount of rent collected by defendant-landlords exceeded the legal rent as determined by DHCR, thereby meeting her initial burden as the proponent of a summary judgment motion. In opposition, defendants failed to raise a triable issue of fact. The prior DHCR orders fixing the amount of lawful rent cannot be collaterally attacked in this action ( see Klaus v. Joy, 85 AD2d 603 ; London Terrace Gardens v. Grabina, 3 Misc 3d 128 A, 2004 NY Slip Op 50346[U] [2004]) and defendants' Statute of Limitations defense was waived because it was not raised in their answers or by way of a pre-answer motion to dismiss ( see CPLR 3211[e] ; Dougherty v. City of Rye, 63 NY2d 989, 991-992 ; Johnson v. Civilian Complaint Review Board, 30 AD3d 201).
We have considered defendants remaining arguments and find them unavailing.
This constitutes the decision and order of the Court.