8 E. 102Nd St. v. Ben-Shitrit

• Decision Date: 19 October 2022
• Docket Number: Index No. 159124/2020,Motion Seq. No. 002
• Citation: 2022 NY Slip Op 33621 (U)
• Parties: 8 EAST 102ND STREET LLC, Plaintiff, v. DORAN BEN-SHITRIT, Defendant.
• Court: New York Supreme Court

2022 NY Slip Op 33621(U)

8 EAST 102ND STREET LLC, Plaintiff,
v.
DORAN BEN-SHITRIT, Defendant.

Index No. 159124/2020, Motion Seq. No. 002

Supreme Court, New York County

October 19, 2022

Unpublished Opinion

PRESENT: HON. VERNA SAUNDERS, Justice

DECISION + ORDER ON MOTION

HON. VERNA SAUNDERS, JUSTICE

The following e-filed documents, listed by NYSCEF document number (Motion 002) 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59 were read on this motion to/for AMEND CAPTION/PLEADINGS.

Plaintiff, the landlord of the building located at 1214 Fifth Avenue, New York, New York 10029 commenced this action by summons and verified complaint against defendant, the tenant of apartment 25C within the building ("premises") seeking rent (first cause of action); legal fees, costs and expenses (second cause of action) and late fees (third cause of action); and damages based on account stated (fourth cause of action) (NYSCEF Doc. No. 1, summons and complaint).

Defendant filed an answer, raising several affirmative defenses. Defendant also asserts a counterclaim, asserting, inter alia, that there is a pending case in the Civil Court of the City of New York, County of New York, under index No. LT- 302819/2020, which involves this same subject matter and, thus, that the instant action is inappropriate and was filed solely to harass, annoy, alarm or otherwise intimidate defendant. Additionally, defendant claims that, by filing this action, plaintiff is trying to circumvent laws and stays that have been implemented by the government for the protection of persons residing in residential units. (NYSCEF Doc. No. 19, answer).

In reply to the counterclaim, plaintiff alleges, inter alia, that the referenced housing court proceeding commenced under LT - 302819/2020 was discontinued on July 16, 2021. Furthermore, plaintiff asserts that, contrary to defendant's allegations regarding "laws and stays" and protections afforded to tenants in summary proceedings, this action is not to recover possession of real property or to evict defendant from the apartment but, rather, to recover unpaid rent, electricity charges, late fees and bounced check charges from defendant pursuant to the lease for the subject premises (NYSCEF Doc. No. 29, reply to counterclaim; 30, signed stiputation of discontinuance of the Civil Court action).

Plaintiff now moves the court, pursuant to CPLR 3212(a) and 2004, for an order granting leave to extend its time to move for summary judgment; pursuant to CPLR 3025(c), granting plaintiff leave to amend the first and second causes of action in the verified complaint to conform to the proof; pursuant to CPLR 3013 and 321 l(b), dismissing defendant's affirmative defenses

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and counterclaim; and, pursuant to CPLR 3212, for an order granting plaintiff summary judgment on its first, second and third causes of action in the amounts set forth in the moving papers or, in the alternative, scheduling an inquest to determine damages (NYSCEF Doc. No. 35, notice of motion).

The motion is not opposed.

'"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.'" (Santiago v Filstein, 35 A.D.3d 184, 185-186 [1st Dept 2006], quoting Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985].) The burden then shifts to the movant's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." (Mazurek v Metropolitan Museum of Art, 27 A.D.3d 227, 228 [1st Dept 2006], citing Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; see also DeRosa v City of New York, 30 A.D.3d 323, 325 [1st Dept 2006].)

As an initial matter, the preliminary conference order in this action directed that all motions for summary judgment be filed within sixty (60) days after the filing of the note of issue (NYSCEF Doc. No. 27, preliminary conference...