This court addresses Lyutershteyn's CPLR 3012 (d) cross-motion first. The
cross-motion is granted for the reasons set forth below. Given that disposition, landlord's
default-judgment motion is denied.
Lyutershteyn's period of default—running at most from April 3 to June
6—is not long. Landlord does not contend that it was prejudiced by that delay; nor
does this court perceive any potential prejudice. And shehas identified potentially
meritorious defenses.
First, Lyutershteyn points out that the final settlement payment by Kletsman
and the apartment's $12,000 security deposit (plus any interest on that deposit), will
largely, or completely, cover her outstanding U&O obligations. (See
NYSCEF No. 30 at ¶ 4 [party affidavit]; NYSCEF No. 9 at 5 ¶ 52, 10
[lease provisions about security deposit].) Landlord does not contend that it returned the
security deposit to Kletsman upon the expiration of the lease; nor that landlord applied
the deposit to any amounts owed in rent or U&O. Lyutershteyn's defense, essentially
one of payment, is strengthened by the fact that landlord cannot, as it suggests, collect
U&O for the portion of November 2022 that followed Lyutershteyn's vacating the
apartment on November 25, 2022. (Compare NYSCEF No. 15 at 3-4 ¶ 19,
5 [seeking U&O running through [*2]November 30,
2022], with id. at 2 ¶ 12 [stating that Lyutershteyn vacated the apartment on
November 25].)
Second, Lyutershteyn correctly contends (NYSCEF No. 28 at ¶ 4) that
because she was not a signatory to the lease, she is not responsible for landlord's claim
for attorney fees based on the lease. (See Oakdale Manor Owners, Inc. v
Raimondi, 2015 NY Slip Op 51754[U], at *2 [App Term, 2d Dept Nov. 30, 2015];
67-15 102nd St., L.L.C. v Whitman-Gross, 2014 NY Slip Op 50659[U], at *2