City of New York v. Candelario

Decision Date22 January 1996
Citation223 A.D.2d 617,637 N.Y.S.2d 311
PartiesCITY OF NEW YORK, Respondent-Appellant, v. Ana CANDELARIO, s/h/a Ana Cancelario, Appellant-Respondent.
CourtNew York Supreme Court — Appellate Division

Rolando T. Acosta, Brooklyn (Kristine L. Franklin, of counsel), for appellant-respondent.

Paul A. Crotty, Corporation Counsel, New York City (Kristin M. Helmers and Alan G. Krams, of counsel), for respondent-appellant.

Prior report: 156 Misc.2d 330, 601 N.Y.S.2d 371.

In a summary proceeding to recover possession of certain premises, Ana Candelario appeals, by permission, from so much of an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated May 27, 1993, as modified an order of the Civil Court of the City of New York, Kings County (Johnson, J.), dated January 9, 1992, by dismissing her counterclaims for damages based on an alleged breach of warranty of habitability; and the City of New York cross-appeals, by permission, from so much of the same order of the Appellate Term as affirmed the order of the Civil Court insofar as it declined to sever Candelario's counterclaim for injunctive relief directing repairs.

ORDERED that the order of the Appellate Term is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the order of the Appellate Term is reversed insofar as cross-appealed from, on the law, without costs or disbursements, and the counterclaim for injunctive relief is severed from the summary proceeding.

We agree with the Appellate Term that Ana Candelario's counterclaims for damages should be dismissed because of her failure to comply with the notice of claim provisions contained in the Administrative Code of the City of New York § 7-201 (see, City of New York v. Kashau, 133 A.D.2d 205, 519 N.Y.S.2d 15; City of New York v. Wall St. Racquet Club, 136 Misc.2d 405, 518 N.Y.S.2d 737). However, Candelario's counterclaim for injunctive relief has no bearing on the outcome of this summary eviction proceeding and, therefore, should have been severed from the proceeding (see, CPLR 407).

ROSENBLATT, J.P., COPERTINO, FRIEDMANN and KRAUSMAN, JJ., concur.

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    • United States
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    ...for the tenant to obtain counsel in effect extends the tenant's time to answer], affd in part and revd in part on other grounds 223 A.D.2d 617 [1996]), [6] this does not mean that certain defenses are not waived by delay. (see CPLR 3211(e)). To this point, courts routinely find that when a ......
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    ...the next court date. City of New York v. Candelario, 156 Mise 2d 330 (App Term 2d &11th Jud Di st 1993), rev'd, in part, on other grounds 223 A.D.2d 617 (2d Dept 1996); Rochdale Village Inc. v. Harris, 172 Misc.2d 758 (Civ Ct Queens County 1997); Gluck v. Wiroslaw, 113 Misc.2d 499 (Civ Ct K......
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