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Nagel v. Harte

Appellate Term of the Supreme Court of New York, First Department
Dec 7, 2005
2005 N.Y. Slip Op. 51983 (N.Y. App. Term 2005)

Opinion

570285/05.

Decided December 7, 2005.

Landlord appeals from an order of the Civil Court, New York County (Lydia C. Lai, J.), dated October 8, 2004, which granted tenant's motion for summary judgment dismissing the petition in a nonpayment summary proceeding.

Order (Lydia C. Lai, J.), dated October 8, 2004, affirmed, with $10 costs.

PRESENT: McCooe, J.P., Gangel-Jacob, Schoenfeld, JJ.


The parties' stipulation of facts establishes that tenant overpaid rent for the years 1994 through 2000. In 2001, following the issuance of a DHCR order establishing the legal rent for the subject apartment, tenant sought to recoup her overpayment by withholding rent, ultimately resulting in the commencement of this nonpayment proceeding.

We agree with Civil Court that pursuant to CPLR § 203(d), tenant is permitted to assert an overcharge defense to landlord's rental claims. While any overcharge claim otherwise would be barred by a two-year statute of limitations ( 9 NYCRR § 2206.8[a][1]), the overcharge defense asserted by tenant "arose from the transactions, occurrences or series of transactions or occurrences" upon which landlord's rental claims depend. Consequently, "it is not barred to the extent of the demand in the [petition] notwithstanding that it was barred at the time the claims asserted in the [petition] were interposed" (CPLR § 203[d]; cf. Immerblum v. Grefe, NYLJ, Jan. 14, 1997, at 26, col 4, aff'd on other grounds 247 AD2d 281).

This constitutes the decision and order of the court.


Summaries of

Nagel v. Harte

Appellate Term of the Supreme Court of New York, First Department
Dec 7, 2005
2005 N.Y. Slip Op. 51983 (N.Y. App. Term 2005)
Case details for

Nagel v. Harte

Case Details

Full title:DR. MICHAEL NAGEL, Petitioner-Landlord-Appellant, v. VALERIE HARTE…

Court:Appellate Term of the Supreme Court of New York, First Department

Date published: Dec 7, 2005

Citations

2005 N.Y. Slip Op. 51983 (N.Y. App. Term 2005)
809 N.Y.S.2d 482