HON. CYNTHIA KERN, J.S.C.
Recitation, as required by CPLR 2219(a). of the papers considered in the review of this motion:
Papers Numbered Notice of Motion and Affidavits Annexed.................................... 1
Answering Affidavits and Cross Motion...................................... 2
Replying Affidavits...................................................................... 3
This action involves the lease entered into by defendant Charo Nespral for apartment 4A in the building located at 408 East 10th Street, New York, NY, which is owned by the City of New York. Plaintiff now moves pursuant to CPLR § 3212 for an order granting partial summary judgment declaring that the lease entered into by defendant for apartment 4A is null and void. Defendant cross-moves for an order granting summary judgment dismissing plaintiffs complaint and declaring defendant's lease for apartment 4A valid. In the alternative, defendant seeks leave to amend her answer. For the reasons set forth below, plaintiffs motion is granted and defendant's cross-motion is denied.
The relevant facts are as follows. Plaintiff 408 East 10th Street Tenants Association (the "Tenant Association") is an unincorporated association of the low income residential tenants of the building located at 408 East 10th Street, New York, New York (the "Building"). The Building is owned by the City of New York and participates in the City's Tenant Interim Lease ("TIL") Program. TIL is part of the City's Division of Alternative Management Programs ("DAMP").
As a member of the TIL program, a written net lease with respect to the building was issued by the City through its Department of Housing Preservation and Development ("HPD") to the Tenant Association in 2000 (the "Net Lease"). Pursuant to the Net Lease, the Tenant Association was to enter into month to month leases with the current residents of each unit. If any of the apartments were vacant at the time, the Tenant Association was required to get prior written approval from HPD prior to renting out such apartment.
At the time the Building entered into the TIL program, defendant Charo Nespral ("Nespral" or "defendant") occupied apartment 4B. Apartment 4A, located adjacent to apartment 4B, was vacant. Sometime in 2004, while Nespral was serving as President of the Tenant Association, she requested that the Tenant Association issue a lease to her with respect to apartment 4A in addition to 4B. Defendant claims that she required the extra space to care for her two children that were born with disabilities. Pursuant to her affidavit, defendant attests that on or about January 22, 2004, she sent a letter to HPD requesting the approval to lease apartment 4A. Sometime thereafter, defendant alleges that she spoke with the then deputy director of HPD who told her to "take the apartment." However, it is undisputed that defendant never received a written authorization to lease apartment 4A.
On or about February 1, 2004, plaintiff issued a lease to defendant for apartment "No. 4 A/B" (the "Lease"). Defendant continues to reside in apartment 4A and 4B and has done construction on the apartments such that these apartments are now connected. According to the affidavit of Edwin Lugo, Deputy Director of HPD's Program Unit, in late 2008, the Program Unit of TIL became aware that the Tenant Association had issued defendant a lease for both apartment 4A and 4B and that this "had been done despite the absence of written approval by the Program Unit of TIL." Once this fact came to light, HPD authorized and directed the Tenant Association to commence litigation in order to declare the portion of the lease issued to defendant with respect to apartment 4A null and void.
On or about July 7, 2010, plaintiff commenced the instant action seeking, among other things, a declaratory judgment declaring the Lease to be null and void and declaring the modifications made to apartments 4A and 4B unauthorized by association rules and a violation of defendants's tenancy. Thereafter, on or about April 23, 2011, defendant moved to dismiss this action on the ground that plaintiffs causes of action were barred by the statute of limitations. In the alternative, defendant sought leave to serve an amended answer which contained additional counterclaims and affirmative defenses. By order dated August 8, 2011, the Honorable Jane S. Solomon denied the motion in its entirety. In her decision, Justice Solomon found that the proposed additional counterclaims and affirmative defenses did not have merit and as such "there [was] no basis for allowing them here."
Plaintiff now brings a motion for partial summary judgment on the issue of whether the portion of the Lease giving defendant a right to apartment 4 A is null and void. It is plaintiffs position that the issuance of a lease to the defendant with respect to apartment 4 A was an act that was null and void ab initio on the ground that defendant never received written authorization from HPD and as such the Tenant Association never had authority to enter into the Lease. Defendant cross-moves for summary judgment on the same issue but seeks a declaration that her Lease is valid. Additionally, defendant seeks to dismiss plaintiffs complaint on the ground that plaintiffs causes of action are time-barred "and other reasons including laches, waiver, estoppel, retaliatory eviction, jurisdictional, ...