Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Bainbridge Three Realty Corp v. Xue Ming Lin

New York Supreme and/or Appellate Courts Appellate Term, First Department


February 15, 2011

BAINBRIDGE THREE REALTY CORP.,
PETITIONER-LANDLORD-RESPONDENT,
v.
XUE MING LIN, RESPONDENT-TENANT-APPELLANT. BAINBRIDGE THREE REALTY CORP., PETITIONER-LANDLORD-RESPONDENT,
BETTY GOROSITO, RESPONDENT-TENANT-APPELLANT. BAINBRIDGE THREE REALTY CORP., PETITIONER-LANDLORD-RESPONDENT,
IVAN POPOV AND ANKA POPOV, RESPONDENTS-TENANTS-APPELLANTS.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT PRESENT: Schoenfeld, J.P., Hunter, Jr., Torres, JJ

Bainbridge Three Realty Corp. v. Xue Ming Lin

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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 15, 2011

Tenants Xue Ming Lin, Betty Gorosito, and Ivan and Anka Popov, as limited by their briefs, appeal from (1) those portions of an order of the Civil Court of the City of New York, Bronx County (Jose A. Padilla, Jr., J.), entered August 4, 2010, which denied their separate motions to amend their respective answers to assert certain affirmative defenses, granted landlord's cross motion for summary judgment against those tenants, and directed a hearing to determine the amount of rent arrears owed to landlord, (2) a final judgment, same court (Donald A. Miles, J.), entered October 4, 2010, after a hearing, which awarded landlord a money judgment in the sum of $20,571.98 as against Gorosito, and (3) a final judgment, same court (Donald A. Miles, J.), entered October 5, 2010, after a hearing, which awarded landlord a money judgment in the sum of $l8,634.35 as against Xue Ming Lin in consolidated commercial nonpayment summary proceedings. Per Curiam. Final judgments (Donald A. Miles, J.), entered October 4, 2010 and October 5, 2010, reversed, without costs, final judgments vacated, those portions of landlord's cross motion for summary judgment against Gorosito and Xue Ming Lin denied, those portions of the separate motions of Gorosito and Xue Ming Lin to amend their respective answers to assert an affirmative defense based upon a contractual rent abatement granted, and the matter remanded for further proceedings. Order (Jose A. Padilla, Jr., J.), entered August 4, 2010, insofar as appealed from and appealable, modified to (1) deny that portion of landlord's cross motion for summary judgment against Ivan and Anka Popov, and (2) grant that portion of the Popovs' motion to amend their respective answer to assert an affirmative defense based upon a contractual rent abatement; as modified, order, insofar as appealed from and appealable, affirmed, without costs.

In light of the particular facts underlying these consolidated commercial nonpayment summary proceedings, and the well-established principle that leave to amend pleadings should be freely granted (see CPLR 3025[b]), tenants should have been permitted to amend their respective answers to include the affirmative defense of a contractual rent abatement under article 9(c) of the governing lease agreements (see generally Hudson Towers Hous. Co., Inc. v VIP Yacht Cruises, Inc., 63 AD3d 413 [2009]). We note in this connection that landlord will not be prejudiced by the amendments, and that the amendments are not palpably insufficient or patently devoid of merit (see Lucido v Mancuso, 49 AD3d 220, 222 [2008]).

However, Civil Court providently exercised its discretion in denying tenants leave to amend their respective answers to assert an affirmative defense based upon landlord's alleged failure to comply with a provision of the leases requiring landlord to first seek compensation for "loss or damage" resulting from certain casualties from any applicable insurance policies. That provision applies only to tort-based claims, and not claims based, as here, on contractual liability (e.g., contractual liability for rent) (see The Gap, Inc. v Red Apple Cos., Inc., 282 AD2d 119, 125 [2001]; see generally Kaf-Kaf, Inc. v Rodless Decorations, Inc., 90 NY2d 654, 660 [1997]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision

February 15, 2011

20110215

© 1992-2011 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.