Chinatown Preserv. HDFC v Yu Hua Chen, 2010 NY Slip Op 50730(U) [27 Misc 3d 1213(A)]

and key money (Answer, Nov. 9, 2009, ¶ 5); failed to provide the services agreed to by the
lease, "including but not limited to number of bedrooms" (Answer, Nov. 9, 2009, ¶ 6); and
"fraudulently represented subject premises as a 3 bedroom apartment at inception of lease
agreement." (Answer, Nov. 9, 2009, ¶ 7.) On November 27, 2009, respondents moved to
amend their answers to include a jury demand. On December 8, 2009, petitioner submitted a
reply to respondent's answer with affirmative defenses contending a failure to state a cause of
action, that the four-year statute of limitations had expired, and that respondents lack privity to
maintain their claims against petitioner. (Reply, Dec. 8, 2009, ¶ 2, 4, 6.)

On February 5, 2010, petitioner cross-moved to dismiss or sever respondents' counterclaims.
Petitioner cited New York City Civil Court Act § 208(d), which "provides that a party may
not interpose or maintain a counterclaim if it does not relate to one of the subdivisions specified
in Section 110(a) of NYC Civil Court Act." (Affirmation of Gee, Feb. 5, 2010, ¶ 16.)
Petitioner also argued that the lease precludes respondents from interposing counterclaims and
that the only exception to the waiver clause would arise if respondents' counterclaim is
"inextricably intertwined with the landlord's entitlement to rent, such as breach of warrant of
habitability." (Affirmation of Gee, Feb. 5, 2010, ¶ 17-18, 22.) Petitioner argued that
dismissing respondents' counterclaims will not result in prejudice. According to petitioner,
respondents already commenced an action in Supreme Court alleging the same causes of action.
(Affirmation of Gee, Feb. 5, 2010, ¶23.) Respondents contend that in their pending
Supreme Court action, the [*3]Honorable Emily Jane Goodman