Opinion
No. 12–340.
2012-12-6
Sharon Fisher SALMERON and Uriel Salmeron, Plaintiffs–Appellants, v. LINCOLN SPENCER APARTMENTS, INC. and Mark Greenberg Real Estate Company, Inc., Defendants–Respondents.
Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Jeffrey K. Oing, J.), entered December 8, 2010, which granted defendants' motion for summary judgment dismissing the complaint and denied plaintiffs' cross motion for summary judgment.
Present LOWE, III, P.J., SHULMAN, HUNTER, JR., JJ.
PER CURIAM.
Order (Jeffrey K. Oing, J.), entered December 8, 2010, modified to deny that branch of defendants' motion for summary judgment seeking dismissal of plaintiffs' first through sixth causes of action, and reinstate those claims; as modified, order affirmed, with $10 costs to plaintiffs-appellants.
Plaintiffs' first through sixth causes of action are not susceptible to summary dismissal. Inasmuch as defendants moved for summary judgment, rather than to dismiss for failure to state a cause of action, any deficiencies in plaintiffs' inartfully drafted complaint do not warrant the grant of defendants' motion ( see Alvord & Swift v. Muller Constr. Co., 46 N.Y.2d 276, 280–281 [1978];Ramos v. Jake Realty Co., 21 AD3d 744, 745 [2005]; 7 Weinstein—Korn—Miller, N.Y. Civ Prac ¶ 3212.10 [2d ed] ), at least where plaintiffs' submission in opposition to the motion was sufficient to raise triable issues as to their entitlement to recovery for breach of the implied warranty of habitability ( seeReal Property Law § 235–b) and related relief. Nor was the absence of a dollar amount in the ad damnum clause of plaintiffs' complaint fatal to their claim, since the defect constitutes a mere irregularity correctable by amendment ( see Serena Constr. Corp. v. Valley Drywall Serv., 45 A.D.2d 896 [1974],lv denied35 N.Y.2d 642 [1974] ).
Contrary to the view expressed by the motion court, the June 9, 2009 DHCR rent reduction order issued in plaintiffs' favor does not serve to bar them from asserting a breach of warranty of habitability claim in this plenary action. “[Plaintiffs] would not be barred ... from asserting a claim for breach of warranty of habitability even where DHCR awarded tenant a rent reduction which relates to one or more matters for which relief is sought herein ... [h]owever, the amount awarded in an action for breach of warranty of habitability must be reduced by the amount of any rent reduction ordered by DHCR” ( Rush Realty Assoc. v. Weston, 1 Misc.3d 130[A], 2003 N.Y. Slip Op 51591[U] [App Term, 2nd Dept 2003] ).
We sustain so much of the order under review as granted defendants' motion for summary judgment dismissing plaintiffs' seventh cause of action seeking attorneys' fees, the only cause of action challenged by defendant on substantive grounds. Plaintiffs failed to make any showing that a lease exists containing a provision for the recovery of litigation costs ( see Orlowski v. Koroleski, 234 A.D.2d 436 [1996]; Partnership 92 W., L.P. v. Woods, 186 Misc.2d 445 [2000] ).