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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
v.
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.

SABRINA B. KRAUS, J.

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).

PROCEDURAL HISTORY

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.

RESPONDENT'S MOTION FOR SUMMARY JUDGMENT

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 ...


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