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

Respondent Chen's motion for leave to conduct disclosure is DENIED. Respondents' motions for
summary judgment are DENIED. Respondents' motions for leave to amend their answers to
include a jury demand and fifth counterclaim are DENIED.

These proceedings are adjourned for trial to May 13, 2010.

This opinion is the court's decision and order.

Dated: April 26, 2010

J.H.C.

Footnotes

Footnote 1: Petitioner does not explain why
the Housing Part would not have jurisdiction over respondents' counterclaims. New York City
Civil Court Act § 110 (a) provides that tenants may allege defenses in two situations: (1)
when a landlord fails to make repairs under RPAPL 755, and (2) when there are serious
violations under MDL § 302-a. (See NY Civ. Ct. Act § 110 [a] [5].) Thus, if a
tenant alleges that the landlord's failure to make repairs constructively evicts the tenant, or "is, or
is likely to become, dangerous to life, health, or safety," then the court may stay a proceeding for
nonpayment of rent. (RPAPL 755 [1] [a].) Similarly, if premises contain a rent-impairing
violation that constitutes a present or future "fire hazard or a serious threat to the life, health or
safety of occupants thereof," then the tenants may plead the affirmative defense of a breach of
habitability in a nonpayment proceeding as long as they also deposit with the court clerk a check
for the rent amount sought. (MDL § 302-a [2] [a], [3] [c].) Respondents counterclaim for
rent overcharge, diminution of services, fraud, and breach of contract. Respondents do not allege
that petitioner failed to make repairs and thus constructively evicted them, or that the apartment
contains a rent-impairing violation. Thus, respondents' counterclaims fall outside the explicitly