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

IV. Respondents' Motions for Summary Judgment.

Respondents move for summary-judgment on their first, second, third, and fifth
counterclaims, as amended. Respondents' first and second counterclaims for breach of lease and
diminution of services allege that because petitioner allegedly promised respondents
three-bedroom apartments, petitioner must either provide three-bedroom apartments for
respondents, regardless of the illegal partition walls, or allow respondents a rent abatement.
Respondents' third counterclaim, for rent overcharge, relates to allegations that the prior landlord
charged a broker fee and key money and raised the rent in a manner inconsistent with the rent
stabilization laws. Respondents also request hearings to determine the damages for each
counterclaim. Respondents further argue that "petitioner has failed to provide an affidavit of
person with knowledge to contradict respondent's sworn statement on respondent's
counterclaims, sufficiently established to warrant the court to direct judgment. CPLR 3212 (b)."
(Affirmation of Fernandez, Mar. 31, 2010, ¶ 10.)

Respondents' third counterclaim, for overcharge, was dismissed above. Therefore,
respondents' summary judgment motions on their third counterclaim are academic. Fraud,
respondents' fourth counterclaim, as amended, is the only counterclaim on which respondents do
not seek summary judgment. However, respondents' counterclaim for fraud was also dismissed
above. Respondents' fifth counterclaim involves the proposed amendment to respondents'
answer, alleging that respondents were injured by the prior holdover petition and requests legal
fees and damages under RPL § 234. This counterclaim is discussed below. Thus, the only
[*9]remaining counterclaims to be discussed under summary