Opinion
Index No. LT No. 307259/22
11-23-2022
One Lenox LLC., Petitioner v. Beverly Rivers 125 Lenox Road Apt 3C Brooklyn, New York 11226 Respondent-Tenants,
Unpublished Opinion
DECISION/ORDER
HANNAH COHEN, J.H.C.
Recitation, as required by CPLR 2219(a), of the papers considered in review of respondent's motion seeking to amend the answer and ensuing opposition.
Papers Numbered
Motion 1
Opposition 2
Upon the foregoing cited papers, the Decision and Order on this motion is as follows:
Petitioner commenced this nonpayment proceeding seeking rental arrears from August 2021 through April 2022. Respondent appeared and answered the proceeding asserting the following defenses and counterclaims: (1) the monthly rent asked for is not the legal rent or amount on the current lease; (2) the rent, or part of the rent, has already been paid to the petitioner; (3) warranty of habitability; (4) general denial; (5) ERAP A9QYJ; and counterclaims for a judgment based upon the above and rent impairing violations in the building. Respondent appeared with counsel on June 2, 2022 and informed the court that an ERAP application was pending. Petitioner by motion sought to vacate the ERAP stay and restore the matter to the calendar as ERAP had already paid rental payments in February 2022 for 15 months. By decision and order dated August 26, 2022 the court noted the ERAP stay did not apply as a determination had already been made and granted the motion and restored the case to the courts calendar to September 29, 2022.
On September 15, 2022 respondent sought by motion to amend the answer pursuant to CPLR 3025(b) to include a defense pursuant to MDL 302-a. Attached to said motion is the amended answer and certified bank check payable to the NYC Department of Finance dated October 4, 2022 for $8,011.56.
Petitioner opposes the motion and argues that respondent and her counsel are being dis honest with the court. Petitioner notes that at the time the court was first informed of the ERAP application, respondent and her counsel both knew that ERAP had already paid and said application was no longer pending. Petitioner further exclaims in opposition to the motion to amend that MDL 302-a requires deposit with the court and respondent has still not done so.
On a motion to amend the answer the court notes it is well established that leave to amend shall be freely given pursuant to CPLR 3025(b), absent prejudice or surprise. The determination to grant leave rests with the discretion of the court and should be made on a case-by-case basis (see, Mayers v. D'Agostino, 58 N.Y.2d 696, 458 N.Y.S.2d 904, 444 N.E.2d 1323; Fahey v. County of Ontario, 44 N.Y.2d 934, 408 N.Y.S.2d 314, 380 N.E.2d 146; Matter of Department of Social Services [Katherine McL.] v. Jay W., 105 A.D.2d 19, 482 N.Y.S.2d 810; Fulford v. Baker Perkins, Inc., 100 A.D.2d 861, 474 N.Y.S.2d 114); Girardin v. Town of Hempstead, 209 A.D.2d 668, 668-69, 619 N.Y.S.2d 150, 150 (1994). Here, respondent in her pro se answer already asserted a counterclaim for a rent impairing violation and the herein amended answer merely reiterates said defense with particularity and pursuant to MDR 302-a. As such there has been no gross delay, surprise or prejudice in asserting the amended answer. (see, Pellegrino v. New York City Tr. Auth., 177 AD.2d 554, 557, 576 N.Y.S.2d 154). Furthermore," [t]he court will also note how long the amending party was aware of the facts upon which the motion was predicated, and whether it offers a reasonable excuse for its lengthy delay" (Pellegrino v. New York City Tr. Auth., supra, citing Balport Constr. Co. v. New York Tel. Co., 134 AD.2d 309, 521 N.Y.S.2d 18.
Based upon the above, respondent's motion to amend the answer is granted and the amended answer is deemed filed, contingent upon respondent depositing $8.011. 56 with the Clerk of the Court by December 2, 2022 and providing both the Court and petitioner's counsel with proof of same.
The court notes petitioner's concern with a representation made by a respondent and/or counsel that an ERAP stay was pending at the outset of this case when said payments was already received and dealt with in a previous non payment proceeding. Petitioner may seek any appropriate remedy it believes is appropriate, however said alleged misrepresentation does not impact the courts discretion pursuant to CPLR 3025(b).
The case is adjourned for a pre trial conference to December 15, 2022 at 9:30 am part H, rm 507.
This constitutes the decision and order of this Court.