Motion for Summary Judgment in Esmelin Pena, Leonela Pena v. Van Courtlandt Assets Llc| Trellis.Law

On September 23, 2020 a Motion,Ex Parte was filed involving a dispute between Esmelin Pena, Leonela Pena, and Van Courtlandt Assets Llc, for Other Matters - Contract - Other in the District Court of Bronx County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF THE BRONX
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ESMELIN PENA and LEONELA PENA, Index No. 30724/2020E
Douglas, J.
Plaintiffs, (Mot Seq # 1)

--against--

VAN COURTLANDT ASSETS LLC,

Defendant.
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MEMORANDUM OF LAW IN SUPPORT OF
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

Jamaica, New York
November 22, 2022

THOMAS J. HILLGARDNER, ESQ.
Attorney for Plaintiffs
82-63 170th Street
Jamaica, New York 11432
(718) 657-0606
tomhillgardner@gmail.com

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Table of Contents

FACTS............................................................................................................................................1

The Parties..........................................................................................................................1

The Premises.......................................................................................................................1

The Lease and Renewal Lease..........................................................................................2

Procedural History.............................................................................................................3

ARGUMENT..................................................................................................................................4

Summary Judgment Standard.........................................................................................4

I. Plaintiff is entitled to summary judgment dismissing Defendant's cause of action for
Attorney's Fees pursuant to Paragraph 16 of the Lease where no language in the
Lease grants defendant the right to recover attorneys fees in defense of an action to
recover statutory penalties for rent overcharge..............................................................4

II. Plaintiffs are entitled to the dismissal of defendant's second, third, fourth, fifth,
sixth, seventh, eighth, tenth, and twelfth affirmative defenses where each and every
one of those affirmative defenses is without merit as a matter of law or are
inapplicable given the facts and claims made by plaintiffs in the complaint...............7

(a) Defendant's second and sixth affirmative defenses appear to be duplicative,
appear to invoke the doctrine of primary jurisdiction, and since the
enactment of the Housing Stability and Tenant Protection Act of 2019 they
are without merit as a matter of law....................................................................8

(b) Defendant's third affirmative defense is a laundry list reciting merely the
title of five affirmative defenses and as such it must be dismissed for its
noncompliance with the pleading and notice requirements of CPLR 3013 and
3014........................................................................................................................12

(c) Defendant's fourth affirmative defense of "unclean hands" must be
dismissed as it is an equitable defense that is unavailable in an action seeking
only monetary damages.......................................................................................14

(d) Defendant's fifth affirmative defense of the statute of limitations must be
dismissed for failure to specify the applicable period of limitations...............14

(e) Defendant's seventh affirmative defense must be dismissed where there has
been no assignment, transfer, sale, or other disposition by plaintiffs of any
interest in any of their causes of action..............................................................16

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(f) Defendant's eighth affirmative defense of unjust enrichment must be
dismissed where unjust enrichment is not cognizable as a defense, especially
where defendant pleads it prospectively............................................................17

(g) Defendant's tenth affirmative defense must be dismissed where it is nothing
more than and superfluous to defendant's denials and it is not cognizable as
an affirmative defense..........................................................................................18

(h) Defendant's twelfth affirmative defense must be dismissed where a
reservation of rights to plead other and further affirmative defenses is not an
affirmative defense cognizable at law................................................................19

III. Plaintiffs are entitled to summary judgment on their claim of rent overcharge where
Landlord charged and collected a rent increase in Plaintiff's 2018 vacancy lease
based upon a claimed individual apartment improvement (IAI) that never was
performed and based on a longevity increase that overstated the length of time since
landlord last collected a vacancy allowance..................................................................20

a. Landlord collected a rent overcharge where in charging a longevity increase
it overstated by one year the length of time since the prior vacancy increase,
or the time when the premises first became subject to the Rent Stabilization
Law........................................................................................................................21

b. Landlord fraudulently claimed a rent increase of $480.73 in connection
with an IAI for which defendant lacks proof such work was performed or
paid for..................................................................................................................22

c. An award of rent overcharge should be calculated using the rent on the base
date ($1,116.74) which should be frozen at that level where defendant has not
filed a proper annual rent registration statement since 2017 which recited the
base date rent as the legal regulated rent..........................................................25

IV. Plaintiff is entitled to treble damages and a refund on his security deposit
overpayment.....................................................................................................................26

CONCLUSION............................................................................................................................27

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FACTS

The Parties

Plaintiffs ESMELIN PENA and LEONELA PENA (hereinafter, collectively, "Tenants") are

brother and sister who live in the County of The Bronx, State of New York. See, Affirmation of

Thomas J. Hillgardner (hereinafter, "Hillgardner Afr.") ¶ 2 (Exh. A, Verified Complaint

(hereinafter, "Complaint") 1-2, Verification). Defendant VAN COURTLANDT ASSETS LLC

(hereinafter, "Landlord") is a domestic limited liability company with a principal place of

business located in the County and State of New York that came into existence on June 18, 1999.

Complaint ¶¶ 3-4; Hillgardner Afr.¶ 3 (Exh. B, Verified Answer (hereinafter, "Answer") ¶ 2).

The Premises

On December 22, 2003, Landlord took title to a building located in the County of the

Bronx, that is identified in the Office of the City Register as Block 3335, Lot 110, and that is

more commonly known by its postal address as 155-165 East Moshulu Parkway North

(hereinafter, "the Building"). Complaint ¶ 5; Answer ¶ 2. The Building is a six story apartment

building and a multiple dwelling, Complaint ¶¶ 5, 8; Answer ¶ 2, that was erected prior to World

War II that contains 89 Class "A" apartments 1. Complaint ¶ 7; but see Answer ¶ 1; cf.

Hillgardner Afr. ¶ 17. The 89 apartments in the Building are located in parts of the Building

known by their various physical addresses as 151 East Moshulu Parkway North, 155 East

Moshulu Parkway North, and 165 East Moshulu Parkway North. Complaint ¶ 9; Answer ¶ 2.

The specific housing accommodation at issue in this action is apartment 3F in the part of the

Building known as 155 East Moshulu Parkway North (hereinafter, "the Subject Premises"). On

1
The Court is respectfully requested to take judicial notice of the fact that the Building contains 89 class "A"
apartments as is set forth on the website of the City of New York, Department of Housing Preservation &
Development known as "HPD Online." (https://hpdonline.hpdnyc.org/HPDonline/select_application.aspx). The
information is found under the building registered as "151 East Moshulu Parkway North" and is most easily found
using the block and lot numbers.

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June 18, 2003 when Landlord took title to the Building, the tenant of record of the Subject

Premises was Gloria Lienor. Complaint ¶ 10; Answer ¶ 2. Sometime in early 2018 Gloria Lienor

permanently vacated the Subject Premises and possession thereof was recovered by the

Landlord. Complaint ¶ 11; Answer ¶ 2.

The Lease and Renewal Lease

On or about May 22, 2018, by a writing dated May 17, 2018, Tenants entered into a written

lease agreement with Landlord concerning the Subject Premises, for a term of one-year

commencing July 1, 2018 and ending June 30, 2019, at a monthly rental of Two Thousand One

Hundred Dollars ($2,100.00) (hereinafter, "the Lease"). Complaint ¶ 12; Answer ¶ 2. Also on

May 22, 2018, at the time of execution of the Lease, Tenants paid to Landlord Two Thousand

One Hundred Dollars ($2,100.00) as and for a security deposit for the rental of the Subject

Premises. Complaint ¶ 26; Answer ¶ 2. Subsequent to the execution of the Lease, Landlord

provided Tenants with a copy inter alia of the Lease which included a "Rider 1," "Rider 2," and

a New York City Lease Rider for Rent Stabilized Tenants (DHCR Form RA-LR1 (07/14)).

Complaint ¶ 14; Answer ¶ 2. Annexed to the Complaint in this action as Exhibit 1 thereof is a

true and complete copy of the Lease, Rider 1, Rider 2, and the New York City Lease Rider for

Rent Stabilized Tenants (RA-LR1) that Landlord subsequently provided to Tenants shortly after

lease execution. Complaint ¶ 15; Answer ¶ 2.

In or about the Spring of 2019, on a form prescribed or a facsimile of such form approved

by the DHCR, Landlord tendered to Tenants an offer of lease renewal. Complaint ¶ 20; Answer

¶ 2. Thereafter, plaintiff Esmelin Pena executed and returned to Landlord that renewal lease form

wherein he alone opted to renew the Lease for a two-year term commencing July 1, 2019 and

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ending June 30, 2021, at a monthly rent of Two Thousand One Hundred Fifty-two Dollars and

fifty cents ($2,152.50). Complaint ¶ 21; Answer ¶ 4.

Procedural History

This action was commenced on September 23, 2020 with the filing of the summons and

complaint. Hillgardner Afr. ¶ 2. The complaint contains two causes of action for rent overcharge:

The first cause of action brought by Tenants seeking to recover all overcharges charged and

collected by Landlord during the term of the vacancy lease (i.e. from July 1, 2018 to June 30,

2019), see, Complaint ¶¶ 1-18, and a second cause of action brought solely by plaintiff Esmelin

Pena seeking to recover all overcharges charged and collected by Landlord during the term of the

renewal lease (i.e. from July 1, 2019 through September 23, 2020, and continuing). See,

Complaint ¶ 19-24. The complaint also pleads the refund of the difference between the $2,100

security deposit that Tenants gave Landlord upon the signing of the Lease and the amount the

Court may find to be the lower legal regulated rent. See, Complaint ¶¶ 25-27.

On December 22, 2020, defendant answered the complaint. Hillgardner Afr. ¶ 3.

Defendant's answer contained twelve affirmative defenses and one counterclaim for attorneys'

fees purportedly based upon ¶ 16 of the Lease. See, Answer ¶¶ 4-42.

On December 23, 2020, in addition to a reply to the counterclaim, see, Hillgardner Afr. ¶ 4

(Exh. C), plaintiff's attorney elected to serve on defendant's attorney a demand for a verified bill

of particulars (VBOP). See, Hillgardner Afr. ¶ 5 (Exh. D). On June 30, 2021 defendant served

and filed defendant's VBOP. See, Hillgardner Afr. ¶ 6 (Exh. E).

Defendant's VBOP did not provide the amplification that plaintiff had hoped because

defendant's attorneys objected to each and every one of the five demands contained in plaintiff's

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demand for a VBOP. See id. Moreover, each and every objection was identical, objecting to each

individual demand because discovery had not yet been had. See, VBOP (Responses 1-5).

Thereafter discovery was exchanged with, as is relevant here, plaintiffs serving a demand

for discovery and inspection and a set of interrogatories and defendant responding thereto. See,

Hillgardner Afr. ¶ 7 (Exh. F-I). At no time since the completion of discovery has defendant

supplemented their bill of particulars. See, Hillgardner Afr. ¶ 6.

This motion now follows.

ARGUMENT

Summary Judgment Standard

On a motion for summary judgment, "the proponent . . . must make a prima facie showing

of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the

absence of any material issues of fact." Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986).

Once this showing is satisfied, "the burden shifts to the party opposing the motion for summary

judgment to produce evidentiary proof in admissible form sufficient to establish the existence of

material issues of fact which require a trial of the action." Alvarez, 68 N.Y.2d at 324. The "facts

[must be] considered in the light most favorable to the non-moving party." Ortiz v. Varsity

Holdings LLC, 18 N.Y.3d 335, 339 (2011). Since an order granting summary judgment resolves

an issue as a matter of law, it is "considered a drastic remedy which should only be employed

when there is no doubt as to the absence of triable issues." Andre v. Pomeroy, 35 N.Y.2d 361,

364 (1974). The court's role on a motion for summary judgment is issue-finding, not issue-

determination. See, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957).

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In New York, pursuant to the longstanding "American Rule," a prevailing party in

litigation is precluded from recouping legal fees from the losing party "except where authorized

by statute, agreement, or court rule." U.S. Underwriters Ins. Co. v. City Club Hotel, 3 N.Y.3d

592, 597 (2004).

In the case at bar, defendant's first and only counterclaim in this action provides as

follows:

40. Defendant incorporates herein by reference, each
and every allegation, answer and denial contained in each of the
above paragraphs.
41. Pursuant to Paragraph 16 of the Apartment Lease
Agreement for the Subject Premises between Plaintiff and
Defendant shall be entitled to reasonable attorney's fees and costs
to be in incurred in successfully defending this action.
42. That upon dismissal of the Complaint, Defendant
should be granted judgment on its counterclaim in an amount to be
determined by the Court, but not less than $5,000.00.

Verified Answer ¶¶ 40-42.

However, paragraph 16 of the Lease concerns access to the Subject Premises and does

not so much as mention the words "costs" or "attorney's fees," and it is completely unconcerned

with liability for same in court proceedings. 2 Rather, the paragraph of the Lease concerning

Tenants' liability to Landlord for attorney's fees and court costs is paragraph 18. Paragraph 18

provides:

2
Paragraph 16 of the Lease provides:

"16th ACCESS: The Landlord, its Agents, employees and mechanics shall be
permitted to enter the apartment at all reasonable hours for the purpose of
making repairs, showing the apartment to prospective tenants, mortgagees, or
buyers, or for the inspection of the apartment. In the event of an emergency
which affects the safety of the tenants in the building or which may cause
damage to the building the Landlord may enter the premises without prior notice
to the Tenant."

Lease ¶ 16.

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18th PAYMENT OF LANDLORD'S EXPENSES. Any expense
incurred by landlord in connection with any performance by it for
the account of the Tenant and all costs and expenses, including
reasonable attorneys' fees (whether or not legal proceedings are
instituted), involved in collecting rents or enforcing the obligations
of Tenant under this lease, including the costs and expense of
instituting and prosecuting legal proceedings or recovering
possession of the premises after default by Tenant or upon
expiration or sooner termination of this lease, shall be due and
payable by Tenant, on demand, as Additional Rent. In the event the
Tenant does not defend any legal proceeding brought by the
Landlord and there is no resolution of the matter by a court, then in
such event the legal fees incurred by the Landlord will become
Additional Rent and may be recovered in any subsequent legal
proceeding involving the Landlord and Tenant.

Lease¶ 18.

Thus, the Lease provides for Tenant to be liable to Landlord for attorneys' fees and costs

in two instances: (1) upon default of Tenant in performance of some affirmative obligation due

to the Landlord pursuant to the Lease, "in connection with any performance by it for the account

of the Tenant"; and (2) "all costs and expenses, including reasonable attorneys fees...involved in

collecting rents or enforcing obligations of Tenant under this lease, including the costs and

expenses of instituting or prosecuting legal proceedings or recovering possession of the premises

after default by Tenant, or upon expiration or sooner termination of the lease."

None of the foregoing language reasonably may be construed as entitling Landlord to

recover attorneys fees and court costs incurred by it in defense of a civil action commenced by

Tenant against Landlord seeking to recover statutory damages for rent overcharge.

Accordingly, the Lease does not provide for Tenant to become liable to Landlord for any

attorneys' fees or costs incurred by Landlord in connection with Tenant's prosecution against

Landlord of any claim for statutory rent overcharge or for recovery of overpayments of a security

deposit. Statutory rent overcharge and return of overpayment of security deposit based upon a

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rent overcharge being the only causes of action plied by Tenant in this action, Tenant is not liable

to Landlord for any attorneys fees or costs incurred by Landlord in the defense of this action.

Accordingly, Tenant is entitled to summary judgment dismissing Landlord's first counterclaim.

CPLR 3211 (b) authorizes a plaintiff to move, at any time, to dismiss a defendant's

affirmative defense on the ground that it "has no merit." See, CPLR R. 3211 (b). When moving

to dismiss an affirmative defense pursuant to CPLR 3211 (b), "the plaintiff bears the heavy

burden of showing that the defense is without merit as a matter of law." Granite State Ins. Co. v.

Transatlantic Reins. Co., 132 A.D.3d 479, 481 (1st Dept. 2015). The movant may satisfy this

burden by showing that affirmative defenses "either do not apply under the factual circumstances

of [the] case, or fail to state a defense." Bank of Am. NA. v. 414 Midland Ave. Assoc., LLC, 78

A.D.3d 746, 748 (2d Dept, 2010). The allegations in the answer must be viewed in the light most

favorable to the defendant, Granite State Ins. Co. v. Transatlantic Reins. Co., 132 A.D.3d at 481,

and "the defendant is entitled to the benefit of every reasonable intendment of the pleading,

which is to be liberally construed." 534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick, 90

A.D.3d 541, 542 (1st Dept. 2011).

Nonetheless, "statements in a pleading shall be sufficiently particular to give the court and

parties notice of the transactions, occurrences, or series of transactions or occurrences, intended

to be proved and the material elements of each cause of action or defense," CPLR § 3013, and

affirmative defenses pled as mere conclusions of law and without any supporting factual

allegations are insufficient as a matter of law and should be stricken on a motion pursuant to

CPLR R. 3211 (b). See, Commssioners of State Ins. Fund v. Ramos, 63 A.D.3d 453 (1st Dept.

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2009); Robbins v. Growney, 229 A.D.2d 356, 358 (1st Dept. 1996) citing Bentivegna v. Meenan

Oil Co., 125 A.D.2d 506, 508 (2d Dept. 1987); Bel Paese Sale Co. v. Macri, 99 A.D.2d 740, 741

(1st Dept. 1984); see also, Petraca v. Petraca, 305 A.D.2d 566, 567 (2d Dept. 2002); Glenesk v.

Guidance Realty Corp., 36 A.D.2d 852, 853 (2d Dept. 1971); see, e.g. Alpha Capital Anstalt v.

General Biotechnology Corp., 191 A.D.3d 515 (1st Dept. 2021); Scholastic, Inc. v. Pace

Plumbing Corp., 129 A.D.3d 75, 83 (1st Dept. 2015). This is so even when the affirmative

defense is pled hypothetically and a defendant is merely seeking to 'cover all of its bases' as

plaintiff is entitled to notice of the transactions and occurrences upon which an affirmative

defense is based pursuant to CPLR 3014. See, Scholastic, Inc. v. Pace Plumbing Corp., 129

A.D.3d at 79-80.

Finally, a motion to dismiss an affirmative defense is addressed to the pleadings and as

such, when granted, such a dismissal is without prejudice to a defendant repleading it in an

amended complaint, see, e.g., Spatz v. Valle, 63 Misc.3d 134[A], 2019 NY Slip Op50452(U)

(App. Term, 1st Dept, 2019); Canzona v. Atanasio, 118 A.D.3d 837, 840-841 (1st Dept. 2014)

(dismissal of causes of action on CPLR 3211 motion is without prejudice), provided, of course,

that they carry their burden on a motion seeking leave to amend to show that such amendment is

neither patently without merit nor palpably insufficient, nor that it is made after delay that

prejudices or surprises another party. See, Lucido v. Mancuso, 49 A.D.3d 220, 228-229 (2d Dept.

2008).

In its second affirmative defense defendant states:

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9. Defendant incorporates herein by reference, each
and every allegation, answer and denial contained in each of the
above paragraphs.
10. Plaintiffs' claims are barred, in whole or in part, to
the extent plaintiffs failed to timely and properly exhaust all
necessary statutory and jurisdictional prerequisites for the
commencement of this action.
11. The Complaint should be dismissed.

Answer ¶¶ 9-11.

Insofar as the complaint pleads only three causes of action: two causes of action for rent

overcharge (one for the period of time when both plaintiffs were the tenant of record and one for

the period of time where only plaintiff Esmelin Pena was the tenant of record), and a third cause

of action for a refund of any security deposit that it overpaid (a claim that is ancillary to and

intertwined with the rent overcharge claims), and because a rent overcharge claim may be raised

"at any time," see, Admin. Code of the City of N.Y. § 26-516 (a)(2), plaintiff was flummoxed by

this "affirmative defense." How can there be any "prerequisite" to suit? This situation was

aggravated by the second affirmative defense's apparent ambiguity and vagueness. It appears to

use language consistent with the affirmative defense of "failure to exhaust administrative

remedies" while simultaneously using language consistent with an affirmative defense pleading a

failure of conditions precedent to suit. It also states that these "prerequisites" that plaintiff

allegedly "failed to timely and properly exhaust" are both "statutory" and "jurisdictional."

Instead of moving for a more definite statement, see, CPLR § 3024, plaintiff opted to serve

defendant with a demand for a bill of particulars 3 hoping defendant would use it as an

3
Plaintiff served a demand for a bill of particulars that defined "You" and "Your" to mean "any and/or all of the
following entities and persons: defendant VAN COURTLANDT ASSETS, LLC, its members, employees, agents,
attorneys, contractors, corporate parent, subsidiaries, affiliates, successors, and assigns," and containing inter alia
the following specific demands for particulars:

1. Set forth each and every necessary statutory prerequisite to
commencement of this action that plaintiffs failed to timely and properly
exhaust as alleged by You in paragraph 10 of Your Answer.

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opportunity to amplify its pleading. See, 345 East 69th Street Owners Corp. v. Platinum First

Cleaners, Inc., 158 A.D.3d 452, 453 (1st Dept. 2018). However this hope was dashed when

plaintiff received defendant's bill of particulars and in response to demands numbered 1 and 2

defendant responded to both demands as follows:

Defendant objects to this demand as being improper as this is a
defense on a legal issue, not susceptible to discovery. Furthermore,
this demand is premature as it only inferred/alleged to potential
statutory prerequisite(s). See, Langella v. D'Agostino Supremarket,
Inc., 122 Misc.2d 708 (1983) (where complaint "only infers
defendant's violation of statutory duties, plaintiff was not required
to respond to bill of particulars demand for specification of statutes
ordinances, rules and regulations alleged to have been violated, at
least prior to such time as pretrial examinations was completed").

Defendant's Bill of Particulars (Responses to Demands 1-2). 4

However, to the extent that the bill of particulars did amplify the pleadings, this response

clarified for plaintiff that the second affirmative defense is mumbo jumbo, white noise, and

cognitive dissonance all rolled into one. Accordingly, plaintiff now moves to dismiss it as

inadequately pled.

Construing the second affirmative defense in the light most favorable to the defendant, and

granting the defendant the benefit of every reasonable intendment of the pleading, which is to be

liberally construed, this affirmative defense appears to suggest that this Court is without

2. Set forth each and every necessary jurisdictional prerequisite to
commencement of this action that plaintiffs failed to timely and properly
exhaust as alleged by You in paragraph 10 of Your Answer.

See, Demand for Bill of Particulars (Definitions, Demands 1 & 2).
4
Langella v. D'Agostino Supermarkets, Inc., 122 Misc.2d 708 (Sup. Ct., Kings Co., 1983) is not binding precedent,
and in any event it is inapposite as it concerns a plaintiff's obligation, pre-discovery, to elaborate in a bill of
particulars the specific statutes, rules, and regulations he/she intends to rely on at trial as imposing a standard of care
or duty on the defendant in an action sounding in negligence. In contrast, here, plaintiff merely is seeking to
understand what defendant means by its affirmative defense that claims that plaintiff "failed to timely and properly
exhaust all necessary statutory and jurisdictional prerequisites for the commencement of this action" for statutory
rent overcharge. It does not ask that defendant identify any particular statutes, rules, or regulations as did the
demand for a bill of particulars that was at issue in Langella.

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jurisdiction to entertain this action because the State of New York, Division of Homes and

Community Renewal, Office of Rent Administration, enjoys primary jurisdiction over statutory

complaints of rent overcharge and plaintiff failed to invoke DHCR jurisdiction and obtain a rent

overcharge determination from DHCR prior to invoking the jurisdiction of the Supreme Court to

enforce or challenge a DHCR determination concerning rent overcharge. See, 9 NYCRR §

2526.1 (e); § 2530.1.

If that is what defendant intends by the second affirmative defense (and it is the only

conceivable "defense" that can be discerned by plaintiff), it is duplicative of defendant's sixth

affirmative defense and must be dismissed for the same reasons as the sixth affirmative defense.

Defendant's sixth affirmative defense is without merit as a matter of law. In its sixth affirmative

defendant states:

21. Defendant incorporates herein by reference, each
and every allegation, answer and denial contained in each of the
above paragraphs.
22. The Division of Housing and Community Renewal
has primary jurisdiction over these issues.
23. Therefore this court lacks jurisdiction to grant the
relief sought within this Complaint.
24. The Complaint should be dismissed.

Answer ¶¶ 21-24.

However, whatever possible merit this affirmative defense may have had prior to passage

of the Housing Stability and Tenant Protection Act (HSTPA), see, Olsen v. Stellar W. 110, LLC,

96 A.D.3d 440 (1st Dept. 2012); compare, Kreisler v. B-U Realty Corp., 164 A.D.3d 1117 (1st

Dept. 2018); Duggan v. London Terrace Gardens, L.P., 101 A.D.3d 649 (1st Dept. 2012), it no

longer has any merit as the HSTPA amended the Emergency Tenant Protection Act of 1974

(ETPA) to provide that in cases of rent overcharge "[t]he courts and [DHCR] shall have

concurrent jurisdiction, subject to the tenant's choice of forum." (L 2019, ch 36, §1, part F, §§ 1,

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3, amending ETPA [L 1974, ch 576, §4] § 12 [a] [1] [f]; [b] [McKinney's Uncons Laws of NY

§ 8632 (a) (1) (f); (b)]). Additionally, regardless of whether the rent overcharge alleged in the

complaint occurred prior to or after passage of the HSTPA, this amendment is procedural,

retroactive, and applicable to proceedings brought prior to passage of the HSTPA that a fortiori

only pleaded rent overcharges collected prior to passage of the HSTPA. See, Collazo v.

Netherland Prop. Assets, LLC, 35 N.Y.3d 987, 990 (2020).

Accordingly, defendant's sixth affirmative defense is without merit as a matter of law and

must be dismissed. Moreover, to the extent the second affirmative defense may be discerned only

as pleading an affirmative defense that is duplicative of the sixth affirmative defense, it too must

be dismissed.

Defendant pleads it's third affirmative defense as follows:

12. Defendant incorporates herein by reference, each
and every allegation, answer and denial contained in each of the
above paragraphs.
13. Plaintiffs' claims are barred, in whole or in part, by
the applicable principles of waiver, ratification, laches, res
judicata, and/or estoppel.
14. The Complaint should be dismissed.

Answer ¶¶ 12-14.

Improperly comingled as one affirmative defense, see, CPLR § 3014; Scholastic, Inc. v.

Pace Plumbing Corp., 129 A.D.3d 75, 79 (1st Dept. 2015), this is a laundry list of "mere titles"

of five affirmative defenses. "The five affirmative defenses set forth in the answer [are] mere

titles of such defenses and [are] not sufficiently particular to give the court and parties notice of

the grounds for the defenses as required by CPLR 3013." Bel Paese Sale Co. v. Macri, 99

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A.D.2d at 741; see, Scholastic, Inc. v. Pace Plumbing Corp., 129 A.D.3d at 83. As such, they are

subject to dismissal. But there is more.

The Rent Stabilization Code (9 NYCRR (RSC) § 2520.13) provides that "[a]n agreement

by a tenant to waive any benefit of the [Rent Stabilization Law] or this Code is void, provided,

however, that based upon a negotiated settlement between the parties and with the approval of

the DHCR, or a court of competent jurisdiction, or where a tenant is represented by counsel, a

tenant may withdraw, with prejudice, any complaint pending before DHCR." But here, the

withdrawal of any prior DHCR rent overcharge proceeding is not pled by defendant.

Accordingly, there is no merit to the affirmative defense of waiver.

Likewise, "ratification" is nothing more than "an agreement by the tenant to waive a

benefit of the RSL or [the RSC]" and is void in the absence of evidence that such agreement was

made in the context of the withdrawal of a DHCR proceeding. Where no such DHCR pleading is

pled, this affirmative defense lacks merit and must be dismissed.

The affirmative defense of laches must be dismissed because it is pled as a bare legal

conclusion without any supporting facts. Commissioners of the State Fire Ins. Fund v. Ramos, 63

A.D.3d 453, 454 (1st Dept. 2009). Additionally, an affirmative defense of laches is unavailable

in an action at law commenced within the period of limitations. Republic Ins. Co. v. Real Dev.

Co., 161 A.D.2d 189, 190 (1st Dept. 1990).

The affirmative defense of res judicata must be dismissed as it is pled in a conclusory

fashion based upon defendant's failure to set forth which of plaintiff's three causes of action are

barred and how. See, Kingman v. ZMoore Ltd., 2018 NY Slip Op 32029(U) *10 (Sup. Ct., N.Y.

Co., 2018). Likewise, and to the extent that defendant's assertion of "estoppel" is deemed the

assertion of the affirmative defense of collateral estoppel, it must be stricken for the same reason.

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See id. To the extent that it is not collateral estoppel that is being asserted and it is promissory

estoppel or equitable estoppel being pled, the "affirmative defense" must be dismissed based

upon defendant's failure to even make clear which affirmative defense it pleads.

Accordingly, the third affirmative defense must be dismissed in its entirety.

(c) Defendant's fourth affirmative defense of "unclean hands" must be
dismissed as it is an equitable defense that is unavailable in an action seeking
only monetary damages.

Defendant's fourth affirmative defense essentially pleads the legal conclusion of "unclean

hands." Specifically, defendant pleads as follows:

18. Defendant incorporates herein by reference, each
and every allegation, answer and denial contained in each of the
above paragraphs.
19. Plaintiffs' claims are barred, in whole or in part, by
the unclean hands and/or actions and/or inactions of Plaintiffs.
20. The Complaint should be dismissed.

Answer¶¶ 18-20.

However, here plaintiff pleads only causes of action for money damages and does not

seek any equitable relief from the court. Accordingly, where "[t]he doctrine of unclean hands is

an equitable defense that is unavailable in an action exclusively for damages," see, Manshion

Joho Center Co., Ltd. v. Manshion Joho Center, Inc., 24 A.D.3d 189 (1st Dept. 2005) citing

Hasbro Bradley v. Coopers & Lybrand, 128 A.D.2d 218, 220 (1st Dept. 1987), lv dismissed 70

N.Y.2d 927 (1987), defendant's fourth affirmative defense must be dismissed.

(d) Defendant's fifth affirmative defense of the statute of limitations must be
dismissed for failure to specify the applicable period of limitations.

Case Info

Judge

Laura G Douglas Track Judge’s New Case

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Document Filed Date

November 22, 2022

Case Filing Date

September 23, 2020

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Motion,Ex Parte: Esmelin Pena, Leonela Pena v. Van Courtlandt Assets Llc

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