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153rd Street Apartment LLC v. Donna Alveranga

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


December 3, 2010

153RD STREET APARTMENT LLC,
PETITIONER-LANDLORD-
v.
DONNA ALVERANGA,
RESPONDENT-TENANT-RESPONDENT.

Per curiam.

153rd St. Apt. LLC v Alveranga

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 3, 2010

PRESENT: Shulman, J.P., McKeon, Schoenfeld, JJ

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Timmie Erin Elsner, J.), dated January 29, 2010, which granted tenant's motion to amend her answer in a nonpayment summary proceeding.

Order (Timmie Erin Elsner, J.), dated January 29, 2010, affirmed, without costs.

The trial court's discretionary grant of tenant's motion to amend her initial, pro se answer to include a defense and counterclaim based upon rent overcharge, and a counterclaim for breach of the warranty of habitability, was consistent with the general rule favoring amendment of pleadings in the absence of prejudice or surprise (see CPLR 3025[b]; McCaskey, Davies & Assocs., Inc. v NY City Health & Hosps. Corp.,59 NY2d 755 [1983]; Jacobson v McNeil Consumer & Specialty Pharm., 68 AD3d 652 [2009]; Gagliardi v Bd. of Appeals of Village of Pawling,188 AD2d 923 [1992], lv denied 81 NY2d 707 [1993]).

We reject landlord's argument that tenant's overcharge and habitability claims are precluded by stipulations in prior summary proceedings. It is well settled that any agreement by a tenant to pay a sum in excess of the legal rent is void (see Rent Stabilization Code [9 NYCRR] §§ 2520.13, 2525.1; Jazilek v Abart Holdings LLC, 10 NY3d 943 [2008]; Riverside Syndicate, Inc. v Munroe, 10 NY3d 18 [2008]), and it cannot be presumed that a prior stipulation established the legal rent for the apartment (see Jazilek v Abart Holdings LLC,72 AD3d 529 [2010]). Finally, tenant's current habitability claim alleges a new breach not covered by a prior stipulation.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: December 03, 2010

20101203

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