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This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2010
PRESENT: McKeon, P.J., Schoenfeld, Hunter, Jr., JJ
Tenant Holly Haupt appeals from a final judgment of the Civil Court of the City of New York, New York County (Jean T. Schneider, J.), entered June 8, 2010, after submission on stipulated facts, which awarded possession to landlord in a holdover summary proceeding. The appeal brings up for review an order of the same court (Gerald Lebovits, J.), dated April 26, 2010, which, among other things, denied tenant's motion to amend her answer.
Final judgment (Jean T. Schneider, J.), entered June 8, 2010, affirmed, with $25 costs.
Since tenant's proposed affirmative defense that the "no-pet" clause was unconscionable was "palpably insufficient or patently devoid of merit" (Lucido v Mancuso, 49 AD3d 220, 222 ), Civil Court (Gerald Lebovits, J.), properly denied tenant's motion for leave to amend her answer (see Pollack v J.A. Green Constr. Corp., 40 AD2d 996 , affd 32 NY2d 720 ; Landmark Props. v Olivo, 5 Misc 3d 18 ; Hollywood Leasing Corp. v Rosenblum, 109 Misc 2d 124 ; see also North Waterside Redevelopment Co., L.P. v Febbraro, 256 AD2d 261 , lv dismissed 93 NY2d 888 ). Moreover, the trial court (Jean T. Schneider, J.), correctly determined that, absent any new evidence, it was precluded, under the law of the case doctrine, from reconsidering the merits of the proposed affirmative defense of unconscionability (see Martin v City of Cohoes, 37 NY2d 162 ). Based upon tenant's concessions in the stipulated facts upon which this matter was tried, including that (1) she harbored two dogs in violation of the "no-pet" clause in the parties' lease, (2) this holdover proceeding was timely commenced under Administrative Code of the City of New York § 27-2009.1(b), and (3) her "disability discrimination" defense has been waived, the trial court properly awarded final judgment to landlord.
In light of the particular facts of this case, issuance of the warrant is stayed for 60 days after service of a copy of this order with notice of entry so that tenant may cure the breach of lease.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 30, 2010
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