390 West End Associates v. Raiff

Decision Date20 September 1995
Citation636 N.Y.S.2d 965,166 Misc. 2d 730
Parties390 WEST END ASSOCIATES, Appellant, v. Jack K. RAIFF, Respondent. 390 WEST END ASSOCIATES, L.P., Appellant, v. Jack K. RAIFF, Respondent.
CourtNew York Supreme Court — Appellate Division

Finkelstein, Borah, Schwartz, Altschuler & Goldstein, P.C., New York City(Paul N. Gruber, of counsel), for appellant.

Jack K. Raiff, respondentpro se.

Before PARNESS, J.P., and MILLER, J.

PER CURIAM:

Order dated October 21, 1994(Louis B. York, J.) reversed, with $10 costs, tenant's motion for summary judgment dismissing the second nonpayment petition is denied, the second nonpayment petition reinstated, landlord's cross motion to strike the first and second jurisdictional defenses, the first, second, fourth and fifth affirmative defenses and the second, fourth, fifth and sixth counterclaims granted and the matter remanded to the Civil Court for further proceedings.

Appeal from the order dated August 16, 1993(Fern Fisher-Brandveen, J.) granting tenant's motion to dismiss the first nonpayment petition is dismissed, without costs, as moot.

In July 1993, landlord-appellant, a realty limited partnership, commenced a nonpayment proceeding against respondent, a rent stabilized tenant, to recover rent from October 1992 through July 1993.That proceeding was ultimately dismissed without prejudice (Fern Fisher-Brandveen, J.) on the ground that landlord failed to establish that it was entitled to maintain the proceeding (RPAPL 721[1] due to the death of one of its general partners in 1991.

Landlord then commenced a second nonpayment proceeding in May 1994 to recover rent from November 1992 through April 1994.Following tenant's motion for summary judgment and landlord's cross motion for dismissal of certain jurisdictional defenses, affirmative defenses and counterclaims, the Civil Court(Louis B. York, J.) dismissed the most recent petition without prejudice on the grounds that the June 1994 multiple dwelling registration statement filed during the course of the proceedings below only listed one partner and did not provide certain site management information.We disagree and conclude that dismissal for this reason was unwarranted.

Contrary to that determination of the court below, it cannot be reasonably said that landlord fatally failed to comply with applicable registration requirements (Multiple Dwelling Law § 325[2];Administrative Code of the City of New York§§ 27-2098[a], 2107[b];22 NYCRR 208.42[g], rendering the petition jurisdictionally defective.The purpose of the registration statutes is to "enable tenants and governmental authorities to readily contact owners or persons responsible for the operation of multiple dwellings" (Whitehall Apts. Co. v. Zeigler, N.Y.L.J., January 26, 1993, at 22, col. 1 [App.Term, 1st Dept.].

Here, the registration statement filed with DHPD recites relevant information concerning the name, address and telephone number of the owner partnership, the name, residence, business address and telephone number of the partnership's sole general partner (Nason Gordon), the name, residence, business address and telephone number of the designated managing agent responsible for maintenance of the building premises and the name and confidential 24-hour emergency telephone number of landlord's representative.Since the chief infirmity in the registration statement (namely, the omission of the name and telephone number of the superintendent or building manager who can also be contacted in the event of an emergency) is capable of correction by amendment and the statutory purpose of the registration requirement was satisfied, the second nonpayment proceeding should not have been dismissed on that ground (Krax Perapatie Apanu Stu Krokodrilos Tus Platos v. Hardy, N.Y.L.J., April 6, 1988, at 11 col. 1 [App.Term, 1st Dept.].We also note that the court below improperly required the registration statement of the owner partnership to include the names of three partners, when, in the circumstances, the only name listed (that of the sole general partner) sufficed (see generally, DHPD v. 351 E. 152nd St. Co., N.Y.L.J., October 18, 1993, at 33, col. 6 [App.Term, 1st Dept.].

Turning to the merits of the remaining branches of tenant's cross motion, which were not reached in the decision below (Louis B. York, J.), but briefed on appeal, petitioner partnership was a proper party entitled to maintain this proceeding pursuant to RPAPL 721[1] (30 Ellwood St. Assocs. v. Aquerre, N.Y.L.J., April 11, 1988, at 16, col. 1 [App.Term, 1st Dept.];K.R.F. Mgt. Co. v. Bartle, N.Y.L.J., October 19, 1987, at 9, col. 2 [App.Term, 1st Dept.] and was a viable entity (see generally, Partnership Law §§ 121-202;121-801[d][1];see also, Elghanayan v. Elghanayan, 190 A.D.2d 449, 454, 598 N.Y.S.2d 524;Burger, Kurzman, Kaplan & Stuchin v. Kurzman, 139 A.D.2d 422, 423-424, 527 N.Y.S.2d 15, lv. denied74 N.Y.2d 606, 544 N.Y.S.2d 820, 543 N.E.2d 85).

As for tenant's first affirmative defense, absent proof of landlord's unreasonable delay in instituting the proceeding and prejudice to the tenant, landlord's rent claim was not stale, nor barred by laches (see generally, Monroe, Inc. v. Nemeth, N.Y.L.J., ...

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    • United States
    • New York Supreme Court — Appellate Division
    • 1 Marzo 2018
    ...101 A.3d 952 [2014] ). Moreover, the dismissal in the prior action was without prejudice (see 390 W. End Assoc. v. Raiff , 166 Misc.2d 730, 734, 636 N.Y.S.2d 965 [App. Term, 1st Dept. 1995] ).Plaintiff established its standing by showing that the indorsed-in-blank note was in its possession......
  • Cassm Realty Corp. v. Cohen
    • United States
    • New York Supreme Court — Appellate Division
    • 1 Febrero 2013
    ...(unpleaded) defense of retaliatory eviction, no such defense lies in the context of landlord's nonpayment claim ( see 390 W. End Assoc. v. Raiff, 166 Misc.2d 730, 734 [1995] ) and, further, tenant's proof on the issue was clearly insufficient to warrant summary dismissal at this juncture ( ......
  • Pena v. Lockenwitz
    • United States
    • New York City Court
    • 1 Agosto 2016
    ...owing the rent in question retaliatory eviction is not a defense to a nonpayment proceeding” (390 West End Associates v. Raiff, 166 Misc.2d 730, 734, 636 N.Y.S.2d 965 [App.Term 1st Dept.1995] ).Six years after its broad pronouncement in 390 West End Associates, the First Department Appellat......
  • Molloy v. Li
    • United States
    • New York Supreme Court — Appellate Division
    • 28 Enero 1997
    ...Property Law § 235-b; see, Solow v. Wellner, 86 N.Y.2d 582, 588-89, 635 N.Y.S.2d 132, 658 N.E.2d 1005; cf., 390 West End Associates v. Raiff, 166 Misc.2d 730, 734, 636 N.Y.S.2d 965). The sixth cause of action also should have survived this motion for summary judgment because the defendant l......
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