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

petitioner's entitlement for rent. In these claims, respondents allege that because respondents no
longer enjoy three bedrooms, they are not required to pay rent, at least in the previously
agreed-upon amount, to petitioner. Petitioner argues that it requested for safety reasons the
removal of the walls when it learned the walls were illegal (Affirmation of Gee, Mar. 8, 2010,
¶6) and that "the fact that an illegal wall had to be removed from the subject premises,
possibly installed by Respondent, would not entitle him to a reduction of rent for diminution of
services." (Affirmation of Gee, Mar. 8, 2010, ¶11.) These are issues for trial. The
resolution of these issues in respondents' favor might result in an abatement in the amount of rent
due to petitioner. Thus, petitioner's motion is denied in regard to respondents' counterclaims for
diminution of services and breach of contract.

Respondents' counterclaim for fraud is procedurally deficient. The entirety of respondent's
allegation of fraud is that "Petitioner and or petitioner's predecessor in interest fraudulently
represented subject premises as a 3 bedroom apartment at inception of lease agreement."
(Answer, Nov 9, 2010, ¶ 7.) Under CPLR 3016, allegations of fraud must be pleaded in
particularity in that "the circumstances constituting the wrong shall be stated in detail." To
demonstrate common-law fraud, respondents must "assert the misrepresentation of a material
fact, which was known by [petitioner] to be false and intended to be relied on when made, and
that there was justifiable reliance and resulting injury." (Braddock v Braddock, 60 AD3d 84, 86 [1st Dept 2009].)
Respondents failed to meet this burden with their conclusory allegation. As discussed below,