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Malafis v. Rosario

Other Lower Courts

December 24, 2007

George N. Malafis Kay G. Malafis, Petitioner,
v.
Arcelia Rosario, Respondent-Tenant,

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

The petitioners were represented by: Ivan B. Okun, Esq., Of Counsel

The respondents were represented by: Marc Aronson, Esq.

OPINION

George M. Heymann, J.H.C.

The petitioners commenced this personal use holdover proceeding alleging that they need the subject premises, located at 325 First Street, Apartment B4, Brooklyn, New York 11215, for their son, Nicholas, who was planning to occupy the apartment as his primary residence with his spouse after their wedding on October 7, 2006.

PROCEDURAL BACKGROUND

On or about August 7, 2006, the petitioners served a "Notice of Intention of Non-Renewal of Lease and Intention to Commence an Action or Proceeding". The notice, dated August 4, 2006, informed the tenant, inter alia, that upon the expiration of her lease on November 30, 2006 the petitioners desired to withdraw the premises from the rental market, that the tenant of the adjoining apartment, B2, would be vacating on August 31, 2006, and that they planned to structurally combine the two apartments so that their son and his future spouse will have "a substantially larger apartment in which to reside".

This "Golub" [1] notice was served by regular mail during the "window period" of no less than 90 days and not more than 150 days prior to the expiration of the current lease. Thereafter, on or about December 13, 2006, the petitioners served the "Notice of Petition and Petition" on the respondents.

The matter first appeared on the Court's calendar on December 29, 2006 and was adjourned on consent to January 25, 2007. On January 25, 2007, the matter was adjourned to March 1, 2007 and the respondents agreed to serve an Answer by February 5, 2007. On February 5, 2007, the respondents' attorney served a "Notice of Appearance and Answer" containing twelve (12) affirmative defenses and three (3) counterclaims.

On March 1, 2007, a stipulation, dated February 28, 2007, was submitted to the Court which provided that the petitioners' attorney agreed to file motion papers by March 16, 2007, the respondents' attorney to respond by March 26, 2007 and the proceeding would be adjourned to April 10, 2007.

On April 10, 2007, the respondents requested another adjournment to May 7, 2007 to file opposition papers to the petitioners' motion to strike by April 24, 2007. The respondents agreed to pay Use and Occupancy [U O] in the amount of $637.46, pendente lite, commencing on April 17, 2007 and thereafter by the 5th day of each month as it comes due.

On May 7, 2007, by Court Order, the petitioners' motion to strike was adjourned to May 29, 2007 to provide the respondents an opportunity to submit written opposition by May 11, 2007 and the petitioners an opportunity to reply by May 18, 2007. If the respondents failed to respond, the petitioners' motion would be granted on default. The respondents agreed to pay $4462.22 (November 2006 - May 2007 U O at 637.46 per month) by May 14, 2007.

On May 29, 2007, this proceeding was "marked off cal[endar]" on the following terms: the branch of the respondents' cross- motion seeking discovery was granted to the extent of ordering depositions of George N. Malfis and his son, Nicholas G. Malfis, within thirty (30) days. The petitioners' motion to strike various affirmative defenses and counterclaims and the balance of the respondents' cross-motion in opposition thereto were then submitted to the Court. [2]

The petitioners' motion seeks an Order a) to strike the respondents' Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh and Twelfth Affirmative Defenses; b) to sever the First and Second Counterclaims and c) directing the respondents to tender ongoing U O during the pendency of this proceeding.

The respondents' cross-moved for an Order a) granting discovery, including depositions of the petitioner and his son, b) if the Court finds that any affirmative defenses in the respondents' Answer are insufficiently pleaded, granting them leave to serve ...


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