landlord could remediate the mold condition (see Ocean Rock Assoc. v Cruz, 66
AD2d 878 [1978], affd 51 NY2d 1001 [1980]), and landlord had "unfettered
access" to the premises.
However, with respect to the remaining time periods at issue, the trial court
improperly precluded landlord from offering evidence that tenant denied access to
landlord's repairmen (see
150-15 79th Ave. Owners Corp. v James, 31 Misc 3d 132[A], 2011 NY Slip Op
50606[U] [App Term, 2d Dept, 11th & 13th Jud Dists 2011]; 930 Fifth Corp. v Shearman,
23 Misc 3d 133[A], 2009 NY Slip Op 50759[U] [App Term, 1st Dept 2009]; Brookwood Mgt. Co. v
Melius, 14 Misc 3d 137[A], 2007 NY Slip Op 50247[U] [App Term, 2d Dept,
9th & 10th Jud Dists [2007] ; West [*2]122nd St. Assoc., L.P. v
Gibson, 5 Misc 3d 137[A], 2004 NY Slip Op 51578[U] [App Term, 1st Dept
2004]). As the trial court acknowledged, landlord was not required to serve an answer to
tenant's warranty of habitability counterclaim (see CCA 907 [a]). Nor could
tenant have been surprised by landlord's lack of access defense, particularly given that
the issue "appear[ed] on the face" of landlord's "prior pleading" (CPLR 3018 [b]),
namely the underlying holdover petition seeking possession based upon tenant's failure to
provide access for repairs, which petition was discontinued long after the habitability
counterclaim was interposed.
In the circumstances, we remand for a new trial, as indicated.
We have considered and rejected landlord's remaining arguments.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: June 23, 2025