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3103 Realty LLC v. Kirbow

Civil Court of the City of New York, Kings County

December 16, 2013

3103 Realty LLC, Petitioner,
John Kirbow et al., Respondents.

Unpublished Opinion

Petitioner's counsel Law Offices of Stuart I. Jacobs.

Respondents' counsel South Brooklyn Legal Services.

Gary F. Marton, J.

Respondents move to vacate a default judgment. The motion is denied and the warrant may be executed upon the service, or re-service by mail, of a marshal's notice.

Petitioner began the above-captioned nonpayment proceeding in April, 2013. The proceeding was assigned to Part H, a pre-trial part. Respondent Kirbow interposed a form pro se answer dated April 30, 2013. The pro se answer form lists 17 different defenses. Two were checked off: #8, rent overcharge, and No.10, breach of the warranty of habitability.

On the first return date of May 6, 2013 the proceeding was adjourned to June 12, 2013. On that date, by a decision and order so dated, the court (Schneider, J.) adjourned the proceeding to July 24, 2013. The decision/order made plain that the parties had to be trial-ready; in pertinent part, it stated "The adjourned date is a trial date and the case is to be referred to Part X on that date." Part X is a trial assignment part located in a room down the hall from Part H.

On July 24, 2013 respondents did not appear in Part H and a default judgment for $16, 800.00 was entered against them. Now, by an order to show cause sought three months later, i.e., on October 29, 2013, they move for relief.

To vacate a default, courts typically require a party to make a prima facie showing of a meritorious defense and to demonstrate a reasonable excuse for the default. Tat-Sang Kwong v Budge-Wood Laundry Service, Inc., 97 A.D.2d 691 (1st Dep't, 1983). Here respondents have not made a prima facie showing of either of their two defenses. It is uncontested that at least six months before petitioner began this proceeding respondents filed a complaint of rent overcharge, still pending, at the State of New York's Division of Housing and Community Renewal ("DHCR"). As a consequence, respondents may not assert here their claim of overcharge. "It was error for the court below to allow the counterclaim for rent overcharge where the evidence at trial revealed that there was a prior proceeding pending on the claim before the administrative agency." Obstfeld v Roth, NYLJ, Mar. 1, 1989, at 25, col 1 (App Term, 2nd & 11th Jud Dists). See also, Fromme v Perper, NYLJ, May 6, 1987, at 12, col 1 (App Term, 1st Jud Dist).

Respondents assert (para. 9 of the reply affidavit of Keltie sworn to on November 11, 2013) that if their motion is granted and the default is vacated, they will withdraw their complaint at DHCR so as to be able to proceed here with their claim of overcharge [1]. However, absent extraordinary circumstances not present here, the choice of forum, once made, must be deemed binding. Respondents, having selected DHCR, may not be heard now to assert that they prefer to abandon that long-pending administrative process and instead have their claim adjudicated in the housing part of the Civil Court because they now think that they will get a better result here. To hold otherwise would create a very significant incentive for similarly situated litigants to forum-shop and to judge-shop. In addition, the court would have to treat as of no importance the waste of such time and resources as DHCR may have already expended in examining respondents' claim. Granting this relief would be at odds with the public interest.

To make a prima facie showing of the affirmative defense of breach of the warranty of habitability, respondents had to show four elements: (1) that the premises were less than fit for human habitation, (2) that petitioner knew or should have known of the same, (3) that petitioner had a reasonable opportunity to cure the same but did not, and (4) that the value of the premises was diminished by petitioner's failure to cure. See, Eke v Ayanru, NYLJ, 3/20/2002, p.22, col. 4 (App Term, 2nd & 11th Jud Dists), Anoula Realty Corp. v Weiss, 16 Misc.3d 133 (A) (App Term, 2nd & 11th Jud Dists, 2007). Here, while respondents complain of various conditions at the premises, they do not offer any particulars as to the date or dates when the conditions arose, and they do not make any showing of the three other elements.

Inasmuch as respondents have not made a prima facie showing of either of their alleged defenses, the court need not decide whether respondents' allegation of being in the wrong courtroom on July 24, 2013 constitutes a reasonable excuse for their default on that date. As set out above, the motion is denied.

The court will notify the parties that copies of this decision/order may be picked up in the courtroom.

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