to pay sums due and to become due from the Lessee to the Lessor ***."
That branch of the motion by defendant Gerard Owners Corp. seeking an order dismissing
the third and fourth affirmative defenses are denied. The third affirmative defense is based on the
allegation that the defendant owner failed to properly file records with the New York State
Department of Housing and Community Renewal with respect to Major Capital Improvements
("MCI"), thereby causing the plaintiff's apartments to generate insufficient rent. A party moving
pursuant to CPLR 3211(b) for an order dismissing an affirmative defense has the burden of
demonstrating that the defense is without merit as a matter of law (see, Vita v New York Waste Services, LLC,
34 AD3d 559 [2nd Dept. 2006]; Santilli v Allstate Ins. Co., 19 AD3d 1031 [4th Dept. 2005]). The
defendant owner did not adequately establish on this motion that the cooperative is not subject to
the Rent Stabilization Law (see, NYC Code § 26-504[a]) and that the plaintiff,
rather than the cooperative, had to file the MCI records.
That branch of the motion which is for an order dismissing the fifth and sixth affirmative
defenses are denied (see, Butler v.
Catinella, 58 AD3d 145, supra). The Court notes that Gerard Corp. is only
seeking to recover for new arrears which accrued after the Civil Court proceedings ended.
That branch of the motion by defendant Gerard Owners Corp. seeking summary judgment on
the counterclaims is denied. Summary judgment is not warranted where there is an issue of fact
which must be tried (see, Alvarez v Prospect Hospital, [*5]68 NY2d 320[1986]). In the case at bar, there are issues of fact
pertaining to whether defendant Gerard Owners Corp. breached the warranty of habitability in