burden and the Court dismisses Petitioner's cause of action of nonpayment of rent. To the extent
that poor bookkeeping occasions Petitioner's failure to meet its burden, the Court dismisses the
nonpayment proceeding without prejudice. Raine v. Viacom Int'l, 224 AD2d 362, 363
(1st Dept. 1996)(the trial court, in settling judgment, correctly dismissed a plaintiff's claims
without prejudice, because the disposition was based on lack of evidence which might become
available at some point in the future), Kilduff v. Donna Oil Corp., 74 AD2d 562, 563
(2nd Dept. 1980)(where a plaintiff has failed to establish a prima facie case, but it appears that
proof which would support a prima facie case is available, the complaint should be dismissed
without prejudice). The Court dismisses Respondent's defenses of laches and tender and refusal
as moot, also without prejudice to renewal if Petitioner again seeks relief against Respondent on
nonpayment of rent.
Respondent has interposed a counterclaim sounding in breach of the warranty of habitability,
which the Court may consider even in the absence of an extant cause of action for nonpayment of
rent. Dunbar Owner LLC v. Jones,
54 Misc 3d 134(A)(App. Term 1st Dept. 2017), Heights 170 LLC v. York, 29 Misc 3d 138(A)(App. Term 1st Dept.
2010), ALP Realty Corp. v. Huttick, 160 Misc 2d 76, 77 (App. Term 1st Dept. 1994), R & O Management Company v.
Ahmad, 12 Misc 3d 85, 86 (App. Term 2nd Dept. 2006). Such a cause of action is
predicated on, inter alia, the "rent reserved under the lease." Park West Management
Corp. v. Mitchell, 47 NY2d 316, 329, cert. denied, 444 U.S. 992 (1979), Elkman
v. Southgate Owners Corp., 233 AD2d 104, 105 (1st Dept. 1996). Whatever shortcomings