this summary proceeding, respondent is not deprived of a remedy. It is merely relegated
to asserting these claims in a separate plenary action. (Titleserv, Inc. v Zenobio,
210 AD2d 310, 311 [2d Dept 1994]; 985 Merrick Realty, LLC v Matt's Station,
Inc., 2011 NY Slip Op 30345[U] [Sup Ct, Nassau County 2011]; see also Ain v
Vasquez, 40 Misc 3d 1202[A], 2013 NY Slip Op 51006[U] [Nassau Dist Ct 2013]
[provision in commercial lease precluding a tenant from asserting a counterclaim upheld
because tenant was not deprived of a remedy in plenary action].)
On the other hand, respondent's counterclaim for damages due to being actually or
constructively evicted is inextricably entwined with petitioner's nonpayment of rent
claim, and is therefore related. (See Joylaine Realty Co., LLC v Samuel, 100 AD3d 706,
706-707 [2d Dept 2012] [commercial tenant may be relieved of its obligation to pay full
rent where it has been actually or constructively evicted from either the whole or a part of
the leasehold]; Johnson v Cabrera, 246 AD2d 578, 578-579 [2d Dept 1998]; see also 737 Park Ave. Acquisition
LLC v Robert B. Jetter, M.D., PLLC, 48 Misc 3d 137[A], 2015 NY Slip Op
51153[U] [App Term, 1st Dept 2015]; Ring, 7 Misc 3d at 880.) Furthermore,
respondent's eviction claim could be decisive of the subject of the action, i.e., the
nonpayment of rent; and should, if supported factually, be asserted in the current action
to avoid the risk of preclusion under principles of collateral estoppel.
Since respondent has asserted unrelated counterclaims, the court grants petitioner's
motion to strike respondent's affirmative{**49 Misc 3d at
1152} defenses of lack of personal jurisdiction and counterclaims insofar as they