City of New York v. Candelario

CourtUnited States State Supreme Court (New York)
Citation156 Misc.2d 330,601 N.Y.S.2d 371
PartiesThe CITY OF NEW YORK, Landlord-Appellant, v. Ana CANDELARIO, sued herein as Ann Cancelario, Tenant-Respondent.
Decision Date27 May 1993

O. Peter Sherwood, Corp. Counsel, New York City (Fay Leoussis and Alan G. Krams, of counsel), for appellant.

Legal Aid Soc., Brooklyn (Jean T. Schneider and Benjamin E. Coopersmith, of counsel), for respondent.

Before KASSOFF, P.J., and CHETTA, and PATTERSON, JJ.

PER CURIAM.

Appeal by landlord the City of New York from so much of an order of the Civil Court, Kings County (Johnson, J.) dated January 9, 1992 as denied its cross-motion to dismiss tenant's affirmative defenses and to dismiss or sever tenant's counterclaims.

Order unanimously modified by providing that tenant's counterclaims seeking an award for property damage, punitive damages, and an affirmative judgment against landlord based on its alleged breach of the warranty of habitability are dismissed without prejudice to tenant's commencement of an independent action based on these claims and as so modified affirmed without costs.

In this holdover proceeding by landlord the City of New York seeking an award of possession and use and occupancy, tenant appeared pro se on the return date and was granted an adjournment to obtain counsel. Tenant subsequently obtained the assistance of Legal Aid, which sought leave to interpose an answer on tenant's behalf. The proposed answer asserted defenses inter alia of lack of personal jurisdiction and breach of the warranty of habitability as well as counterclaims seeking ordinary and punitive damages for the breach of warranty, damages for property loss resulting from the breach, and an injunction directing repairs. Upon a motion by the City to dismiss tenant's affirmative defenses and to dismiss or sever her counterclaims, the court below denied those portions of the motion seeking to dismiss tenant's defense of lack of personal jurisdiction and to dismiss or sever tenant's counterclaims.

In our view, the court below properly refused to dismiss tenant's affirmative defense of lack of personal jurisdiction. Tenant's pro se appearance on the return date did not constitute a waiver of this defense as no answer was interposed at that time and the court's adjourning the matter for tenant to obtain counsel in effect extended tenant's time to answer (see, Gluck v. Wiroslaw, 113 Misc.2d 499, 449 N.Y.S.2d 567; see also, ...

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18 cases
  • Servs. for the Underserved v. Mohammed
    • United States
    • New York Civil Court
    • June 1, 2023
    ...Although the time to answer holdover petitions is generally extended to subsequent appearances, (see City of New York v. Candelario, 156 Misc.2d 330 [App. Term, 2nd & 11th Jud. Dists. 1993] [an adjournment for the tenant to obtain counsel in effect extends the tenant's time to answer], affd......
  • Aviles v. Santana, 26087/2017.
    • United States
    • New York Civil Court
    • July 5, 2017
    ...made. Gluck v. Wiroslaw (113 Misc.2d 499, 501, 449 N.Y.S.2d 567, 568 [Civ Ct Kings Co 1982] ); see also City of New York v. Candelario (156 Misc.2d 330, 601 N.Y.S.2d 371 [App Term 2nd Dep't 1993], aff'd in part, rev'd in part on other grounds, 223 A.D.2d 617, 637 N.Y.S.2d 311 [2nd Dep't 199......
  • Findlay House, Inc. v. Zhang Hongliu, 49386/2017
    • United States
    • New York Civil Court
    • August 31, 2018
    ...heard." ( RPAPL 743.) Moreover, Respondent served her Answer immediately upon retaining counsel. (See City of New York v. Candelario , 156 Misc.2d 330, 601 N.Y.S.2d 371 [App. Term, 2d Dept. 1993], affd in part, revd in part on other grounds 223 A.D.2d 617, 637 N.Y.S.2d 311 [1996] [an adjour......
  • 974 Anderson LLC v. Davis
    • United States
    • New York Civil Court
    • December 14, 2016
    ...moving papers, the court hereby deems such Answer to be duly served and filed nunc pro tunc. See, e.g., City of New York v. Candelario (156 Misc.2d 330, 601 N.Y.S.2d 371 [App Term 2nd Dep't 1993], affd in part, revd in part on other grounds 223 A.D.2d 617, 637 N.Y.S.2d 311 [2nd Dep't 1996] ......
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