Kew Gardens Portfolio Holdings, LLC v. Bucheli
| Decision Date | 19 August 2021 |
| Citation | 2021 NY Slip Op 50848 (U) |
| Parties | Kew Gardens Portfolio Holdings, LLC, Petitioner, v. Ronald Bucheli, BARBARA PINARGOTE, Respondents, and "JOHN DOE" and "JANE DOE," Respondents-Undertenants. |
| Court | New York Civil Court |
Unpublished Opinion
Boris Lepikh, Esq., Todd Rothenberg, Esq. Attorneys for Petitioner
Luis F. Echeverria, Esq. Attorney for Respondents Ronald Bucheli and Barbara Pinargote
Autrey Johnson, Esq. Attorney for Ruby Gallardo
HON CLINTON J. GUTHRIE J.H.C.
Recitation as required by CPLR § 2219(a), of the papers considered in the review of petitioner's motion to strike respondents' affirmative defenses and counterclaims pursuant to CPLR § 3211(b), to strike respondents' answer for failure to pay use and occupancy, for sanctions and/or to amend the petition pursuant to CPLR § 1024:
Upon the foregoing cited papers, the decision and order on petitioner's motion is as follows.
This holdover proceeding was commenced in November 2018. The petition pleads that the named respondents are licensees or, in the alternative, squatters. The named respondents, through counsel, made a pre-answer motion to dismiss on the basis that the petition was defective insofar as it pled alternative causes of action. The motion to dismiss was granted by order of the Hon. Sergio Jimenez on May 14, 2019. By decision and order of the Appellate Term, Second Department dated October 2, 2020, the order granting respondents' motion to dismiss was reversed. See Kew Gardens Portfolio Holdings, LLC v. Bucheli, 69 Misc.3d 129 [A], 2020 NY Slip Op 51137[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]. Subsequently, respondents filed an answer containing affirmative defenses and counterclaims. Petitioner now moves to strike to strike respondents' answer for failure to pay use and occupancy, to strike the majority of respondents' affirmative defenses and counterclaims pursuant to CPLR § 3211(b), for sanctions, and/or to amend the petition pursuant to CPLR § 1024. After submission of opposition and reply papers, the court heard argument on December 22, 2020 (via Microsoft Teams) and reserved decision. [1]
The court first assesses petitioner's motion to strike respondents' answer for failure to pay use and occupancy. Petitioner annexes a copy of a 2-attorney stipulation dated January 8, 2019, whereby the proceeding was adjourned to February 22, 2019 and respondents were obligated to pay January (2019) use and occupancy by January 25, 2019 and ongoing use and occupancy by the 10th of each month thereafter "without prejudice to either parties['] claims and defenses." Petitioner's affiant, Manny Stein, states that respondents failed to pay use and occupancy as required by the January 8, 2019 stipulation and owed $26, 440.11 through November 2020.
The court first notes that the January 8, 2019 stipulation is not so-ordered, so is therefore not an order of the court. [2] See Will v. County of Nassau, 90 A.D.2d 795 [2d Dept 1982]; Estate of Frank Lamberti, 2007 NY Misc. LEXIS 8136, *8 [Sur Ct, Westchester County, November 19, 2007], affd sub nom. Matter of Lamberti v. Angiolillo, 73 A.D.3d 463 [1st Dept 2010]. Since the provision of RPAPL § 745 that permits the dismissal of defenses and counterclaims applies only where the court has directed a deposit of use and occupancy, no such remedy is available here. [3] See Front St. Rest. Corp. v. Ciolli, 55 Misc.3d 104, 106 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]. Moreover, the stipulation's language makes clear that the agreed-to use and occupancy payments are "without prejudice to either parties['] claims and defenses" and no penalty for failing to pay is set out in the stipulation. See Myrtle Venture Five, LLC v. Eye Care Opt. of NY, Inc., 48 Misc.3d 4, 6 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ["[T]he so-ordered stipulation did not provide for the striking of tenant's pleading in event of default, and the court does not have the inherent authority to grant that relief absent such a provision."]. Accordingly, petitioner's motion to strike respondent's answer for failure to pay use and occupancy is denied without prejudice to any appropriate relief pursuant to RPAPL § 745.
Petitioner moves to strike eleven of respondents' twelve affirmative defenses and all three counterclaims pursuant to CPLR § 3211(b). Pursuant to CPLR § 3211(b), "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." In reviewing a motion to dismiss a defense or defenses under the statute, "the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference [and] if there is any doubt as to the availability of a defense, it should not be dismissed." Staropoli v. Agrelopo, LLC, 136 A.D.3d 791, 792 [2d Dept 2016]. However, defenses that consist only of "conclusions of law without any supporting facts" are subject to dismissal. Fireman's Fund Ins. Co. v. Farrell, 57 A.D.3d 721, 723 [2d Dept 2008].
Petitioner first seeks to dismiss respondents' first affirmative defense, based on lack of personal jurisdiction. The first affirmative defense states that petitioner failed to comply with RPAPL § 735 in service of the predicate notice and petition and notice of petition. The court first notes that service of a predicate notice does not affect personal jurisdiction in a summary proceeding. See 156 Nassau Avenue HDFC v. Tchernitsky, 62 Misc.3d 140 [A], 2019 NY Slip Op 50059[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Wasserman v. Kwiecinski, 54 Misc.3d 136[A]; 2017 NY Slip Op 50112[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]. In order to challenge personal jurisdiction, a party must set forth a "sworn, nonconclusory denial of service" of the notice of petition and petition. Tzifil Realty Corp. v. Temammee, 46 Misc.3d 144 [A], 2015 NY Slip Op 50196[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see also Rox Riv 83 Partners v. Ettinger, 276 A.D.2d 782, 783 [2d Dept 2000]. Respondents' first affirmative defense is wholly conclusory and does not include any specific details in support of the denial of service pursuant to RPAPL § 735. Consequently, respondents' first affirmative defense, based on lack of personal jurisdiction, is dismissed. [4]
Respondents' second affirmative defense is lack of subject matter jurisdiction based upon an assertion that petitioner failed to comply with RPAPL § 721. Petitioner seeks to dismiss this defense based on lack of particularity. Although frequently misunderstood, "Civil Court is vested with subject matter jurisdiction over housing matters by statute." 170 West 85th Street Tenants Ass'n v. Cruz, 173 A.D.2d 338, 339 [1st Dept 1991]; see also 136-76 39th Ave., LLC v. Ai Ping Wu, 55 Misc.3d 128 [A]; 2017 NY Slip Op 50363[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; NYC Civil Court Act (CCA) § 204. Respondents' bare assertion that petitioner failed to comply with RPAPL § 721, which addresses who may bring a summary proceeding, does not impact the subject matter jurisdiction of this court. Accordingly, respondents' second affirmative defense is dismissed.
Respondents' third affirmative defense alleges that petitioner failed to personally deliver the petition, notice of petition, and the predicate notice upon respondents. The court has previously held that respondent's personal jurisdiction defense is dismissed, so will not separately pass upon the allegation regarding the petition and notice of petition here. Pursuant to RPAPL § 713, a 10-day notice to quit is not required to be served by personal delivery. Instead, service must be made pursuant to RPAPL § 735, which permits substitute service and conspicuous place service (if upon a reasonable application admittance cannot be obtained), in addition to personal delivery. Therefore, a denial of personal delivery alone is insufficient to challenge service of the predicate notice to quit. [5] As a result, respondents' third affirmative defense is dismissed. [6]
Respondents' fourth affirmative defense alleges that the petition is jurisdictionally defective under RPAPL § 741 insofar as it: fails to attach required notices, does not contain/state the required contents and facts, and/or fails to state how required notices were given to respondents. Although lacking in specificity, this defense is effectively one sounding in failure to state a cause of action. Since such defenses are regarded as "'harmless surplusage, '" the court denies petitioner's motion to dismiss respondents' fourth affirmative defense. Butler v. Catinella, 58 A.D.3d 145, 150 [2d Dept 2008] [quoting Citibank [S.D.] N.A. v. Coughlin, 274 A.D.2d 658, 660 [3d Dept 2000]].
Respondents' fifth affirmative defense alleges that petitioner "has failed to comply with the required predicate notices." The defense does not state how petitioner has failed to comply. Since the Appellate Term has specifically held that the notice to quit is legally sufficient, the court determines that there is no merit to respondent's fifth affirmative defense and it is hereby dismissed. The court declines to impose sanctions pursuant to 22 NYCRR § 130-1.1, as requested by petitioner. Respondents' counsel, however, is cautioned that any future attempt to challenge the sufficiency of the notice to quit ...
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