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Nunz Realty, LLC v. McBride

Civil Court of City of New York, New York County

August 19, 2013

NUNZ REALTY, LLC, Petitioner-Landlord
James McBRIDE, Elizabeth Garza, Respondents-Tenants. No. L & T 60118/2013.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Novick Edelstein Lubell by Lawrence Schiro, Esq., Yonkers, attorneys for petitioner.

Vernon & Ginsburg, LLP by Yoram Silagy, Esq., New York, attorneys for respondent.


The underlying nonpayment proceeding was commenced by NUNZ REALTY, LLC (Petitioner) against JAMES McBRIDE and ELIZABETH GARZA (Collectively " Respondents" ) the Rent Stabilized tenants of record, based on allegation that Respondents have failed to pay rent due for 508 West 112th Street. APT 9A-B, NEW YORK, N.Y. 10025 (Subject Premises).


Petitioner issued a three day demand dated February 26, 2013 seeking $79,022.90 in arrears for a period covering October 2007 through February 2013 at a monthly rent of $1212.66. The petition is dated March 13, 2013.

Respondents appeared through counsel and filed a written answer and counterclaims dated April 11, 2013. The answer asserts that in the fall of 2005 Respondents and Petitioner's predecessor in interest had a dispute over the roof area, which resulted in litigation in Supreme Court, and that petitioner has since acted in violation of the Supreme Court order. The answer also asserts laches, statute of limitations, breach of quiet enjoyment and breach of warranty of habitability.

The proceeding was originally returnable on April 19, 2013.

On July 11, 2013, Petitioner moved for discovery, and Respondent cross-moved for summary judgment, or alternatively for an order severing Petitioner's claim based on their affirmative defense of laches. The motions were submitted on August 15, 2013, and the court reserved decision. The motions are consolidated herein for disposition.


Respondents move for summary dismissal of this proceeding based on their claim that the rent sought by Petitioner is stale. Respondents assert that Petitioner began rejecting payments tendered for rent in October 2007, because Respondents had not signed a renewal offered in 2007. There was some communications between the parties from that period through May 2009, regarding whether the renewal had been a proper offer. Respondents assert that in May 2009, they decided to stop tendering rent, and that other than one phone call from Petitioner's agent, Petitioner took no steps to collect the rent prior to the commencement of this proceeding.

Petitioner counters that the Supreme Court litigation lasted years, and that no final determination was made until a decision issued by the Appellate Division in March 2010. The court notes that a decision issued after trial by Supreme Court is dated December 1, 2008 (22 Misc.2d 920, 201 N.Y.S.2d 819) and the Appellate Division affirmed the decision on March 25, 2010 (71 A.D.3d 567, 899 N.Y.S.2d 150). There is no explanation for what if anything occurred between March 25, 2010 and February 26, 2013 when the rent demand was issued by Petitioner.

Respondent's motion for summary judgment based on laches is denied. Laches is an equitable doctrine based on fairness and it is not a defense which is subject to summary disposition on motion papers, as it is by its nature a defense depend upon factual findings which can not be made on motion papers ( Continental Cas. Co. v. Employers Ins. Co. Of Wausau 60 A.D.3d 128, 871 N.Y.S.2d 48). In this case, for example, the parties assert different facts as to whether Respondents have been prejudiced by the delay. Whether a party has suffered some disadvantage as a result of the delay depends on the facts of the case ( Karagiannis v. Nasar 35 Misc.3d 37, 943 N.Y.S.2d 816).

Delay alone insufficient to establish laches ( Premier Capital LLC v. Best Traders, Inc. 88 A.D.3d 677, 930 N.Y.S.2d 249). Additionally a showing of prior litigation between the parties, as has been established here, may negate any laches defense [ Roxborough Apts Corp. v. Becker 31 Misc.3d 138(A) ].

Even if Respondents do establish at trial that a portion of the rent sued for is stale, that would not result in dismissal of the proceeding, but would limit Petitioner to a money judgment in this proceeding for any arrears deemed stale ( 1560-80 Pelham Pkwy. Assoc. v. Errico 177 Misc.2d 947, 678 N.Y.S.2d 860). To the extent that Respondents argue that the decision in A & E Tiebout v. Johnson 26 Misc.3d 131(A), 907 N.Y.S.2d 98 (2010) implicitly overrules previous Appellate Term decisions finding that severance of any stale rent is not required, this argument is rejected by the court. The court notes that both Errico supra and City of New York v. Betancourt 79 Misc.2d 907, 362 N.Y.S.2d 728 were cited by the trial court with approval in Tiebout and the Appellate Term affirmed for the reasons stated by the trial court. Moreover, the facts in Tiebout and the case at bar are substantially different.

Based on the foregoing Respondents' motion is denied.


Petitioner moves for discovery on Respondents' breach of warranty of habitability claims and regarding claims of Petitioner accessing the roof. The court finds that Petitioner's moving papers fail to establish ample need for discovery as required.

To the extent that there are any issues related to the use of the roof, the parties had ample opportunity to flush out each others positions in the Supreme Court litigation, which already determined claims as to trespass, reasonable access and the fact that the roof is a part of the Subject Premises. Petitioner fails to establish ample need for discovery on Respondents' breach of warranty of habitability claims, and Respondents' bear the burden on establishing this affirmative defense at trial, including that Petitioner knew or should have known of any alleged conditions.

Additionally, to the extent that Petitioner seeks greater detail on the allegations in Respondents' pleading, Petitioner may use a Demand for a Bill of Particulars to obtains such details.

Finally, to the extent that Petitioner seeks discovery on lease renewal offers and payments of rent, the court does not find said request appropriate. The petition asserts that Respondents are in possession pursuant to a written lease agreement, for a term running through February 1, 2006 through January 31, 2008, at a monthly rent of $1212.66. However, Petitioner's agent acknowledges in his June 26, 2013 affidavit that there is no executed lease in effect between the parties' for any period after 2006, but asserts that depositions are needed to determine when leases were offered, why they were rejected, what the proper increases should be and what rent is due. These facts are not exclsuively with Respondents' knowledge and control and disclosure may not be sought in a summary nonpayment proceeding to determine if a claim exists ( JD Realty Associates v. Jorrin 166 Misc.2d 175, 632 N.Y.S.2d 441).

Based on the foregoing Petitioner's motion for discovery is denied.

The proceeding is restored to the calendar on September 26, 2013 at 9:30 am for trial.

This constitutes the decision and order of this court.

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