Recitation, as required by CPLR 2219(A), of the papers considered in the review of this Motion:Papers NumberedNotice of Motion and Affidavits Annexed 1Affirmation in Opposition 2Reply AffidavitsOtherDECISION/ORDER Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:In this non-payment proceeding petitioner served respondent, Julius Joseph, with a Notice of Petition and Petition dated May 15, 2017. Petitioner sought payment of rental arrears in the amount of $2,502.35 at a monthly rent of $498.00. On August 7, 2017, respondent filed a pro se answer asserting two defenses: 1) that he did not receive the Notice of Petition and Petition, and 2) that there are conditions in the apartment that NYCHA has failed to repair. Thereafter, respondent retained counsel. Respondent through counsel moved on January 9, 2018, for leave to serve and file an Amended Answer, which was granted on consent on January 10, 2018, and a second motion for leave to file a Second Amended Answer was granted on consent on February 21, 2018. The matter was then adjourned for trial.Petitioner now moves by Notice of Motion dated June 29, 2018, for an order pursuant to CPLR §3211(a)(6) dismissing respondent’s counterclaims and for an order permitting petitioner to discontinue this proceeding. Petitioner argues that the monies sought in the petition, $2,502.35 representing all rent due through May 2017 has been paid. On April 2, 2018, the Department of Social Services (“DSS”) paid $7,394.57 on respondent’s behalf satisfying all arrears owed through May 2017. Petitioner argues that since all arrears have been paid through May 31, 2017, that no rent is due and owing to petitioner which would serve as a basis for a setoff of respondent’s possible abatement claims. Therefore, respondent is seeking an affirmative judgment against petitioner and a Notice of Claim is required.Petitioner argues that a Notice of Claim must be filed when a party seeks an affirmative judgment against the City of New York. Petitioner relies on General Municipal Law (“GML”) §50-i which states that, “[n]o action or special proceeding shall be prosecuted or maintained against the City…unless (a) a notice of claim shall have been made or served upon the City….” Additionally, petitioner argues that Public Housing Law (“PHL”) §157(1) requires that at least thirty days has elapses since service of a notice of claim or that payment or adjustment has been refused. Petitioner also relies on several cases including, City of New York v. Candelario, 156 Misc2d 330 [App Term 2nd Dept 1993], Ragosto v. Triborough Bridge and Tunnel Authority, 173 Misc2d 560 [App Term 1st Dept 1997] and City of New York v. Kashau, 33 AD2d 205 [App Div 2nd Dept 1987] which have held that a Notice of Claim is necessary to commence an action against the City.In opposition, respondent argues that GML §50-i does not apply to this non-payment proceeding because it is not an action brought against the city for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such party as per the terms of the statute. Respondent argues that the requirement for a Notice of Claim does not apply to defenses and counterclaims regarding the warranty of habitability and that an abatement is based on a rent setoff and not an affirmative judgment. Respondent relies on City of New York v. Jones, NYLJ, p24, col 5, May 28, 1992 [App Term 2nd & 11th Jud Dist]; NYCHA v. Foote, 58 Misc3d 494 [Civ Ct Queens Cty 2017] and Vanderhoff v. Casler, 91 AD2d 49 [App Div 3rd Dept 1983] among other cases that have held that there is no limitation on respondent’s right to pursue his or her breach of warranty of habitability claims (see, Jones, “[i]n the case at hand the claim of breach of the implied warranty of habitability was raised by way of defense to rent due and there is no limitation”). Additionally, respondent argues that it is against public policy to waive a tenant’s rights pursuant to RPL §235-b (Vanderhoff v. Casler, 91 AD2d 49).In the alternative, respondent asserts that if a Notice of Claim is required for respondent to proceed in this action that the court take note that respondent mailed a Notice of Claim to the City of New York on July 25, 2018, regarding his intent to seek an abatement going back to July 2013. Additionally, respondent requests leave to file a late Notice of Claim if it is required.DiscussionHerein respondent seeks to assert his warranty of habitability defense and counterclaim, seeking an abatement for petitioner’s failure to repair the conditions in his apartment for several years. Petitioner seeks to dismiss respondent’s counterclaims and to discontinue this proceeding claiming that respondent must file a Notice of Claim with the City of New York prior to pursuing his counterclaims.The language of the statute GML §50-i is quite clear: the heading of the statute reads “Presentation of tort claims; commencement of action.” Additionally, the statute states that, “no action or special proceeding shall be prosecuted or maintained against a city, county, town, village…for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city…unless, (a) a notice of claim shall have been made and served upon the city…” and at least thirty days have elapsed. Hence, GML §50-i is applicable in actions wherein a party affirmatively sues the City of New York involving tort or negligence claims and not in matters where respondent seeks to enforce his warranty of habitability claims.Yes, in instances where litigants affirmatively sue the City and where an affirmative judgment would be substantial, a Notice of Claim is required, as in Devon Estates v. City of New York, 92 Misc2d 1077 [App Term 1st Dept 1977]. In Devon, petitioner commenced a non-payment summary proceeding against the City of New York seeking possession of premises leased to the City. The petition demanded rent in the sum of $228,652.44. The court reversed the Civil Court’s award of a money judgment and dismissed the petition because it found that the City was not provided with the requisite notice of the proceeding and that pursuant to the statute that a notice of claim was a necessary prerequisite to commence the action. The court states, that “the purpose of the provision is to permit the city to investigate the validity of a claim and determine whether it desires to pay or settle it without the expense of litigation.”Similarly, a Notice of Claim is required in cases where litigants sue the City in actions based on tort or negligence. As in Ragosto v. Triborough Bridge & Tunnel Authority, 173 Misc2d 560 [App Term 1st Dept 1997] the plaintiff sought to pursue a Small Claims action seeking damages against various employees of the Triborough Bridge and Tunnel Authority based upon an action “found upon tort”.Furthermore, courts have held that there can be “no limitation” of a tenant’s right to make a claim pursuant to the warranty of habitability against any landlord (see, City of New York v. Jones, NYLJ, May 28, 1992, p. 24, col 5 [App Term 2nd & 11th Jud Dist]). In Jones, the court rejected the City’s motion to dismiss the tenant’s counterclaim stating that “there is no limitation in RPL 235-b to the right of a tenant to make such claim against any landlord.” This also includes the City of New York wherein it has been held that the affirmative defense of the warranty of habitability (RPL 235-b) may be asserted against the City of New York in its status as a landlord in a nonpayment summary proceeding (City of New York v. Rodriguez, 117 Misc2d 986 [App Term 1st Dept 1983]). The requirements of section RPL §235-b may not be qualified or eliminated by lease provisions. RPL §235-b(2) explicitly voids as contrary to public policy “any agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth in this section Park West Management Corp. v. Mitchell, 62 A.D.2d 291, 404 N.Y.S.2d 115, affd. on other grds. 47 N.Y.2d 316, 418 N.Y.S.2d 310, 62 L.Ed.2d 421.Additionally it has been held:Enactment of section 235-b [of the Real Property Law] gave rise to an implied promise on the part of the landlord that…the demised premises…are fit for human occupation at the inception of the tenancy and that they will remain so throughout the lease term Park West Mgt. Corp v. Mitchell, 47 NY2d 316, 327. By adopting this statute the Legislature attempted to redress the traditional legal imbalance in favor of landlords; tenants who customarily were virtually powerless to compel the performance of essential services were now said to be placed in legal parity with landlords. As part of this new parallelism, the statute expressly voids any agreement by a lessee or tenant waiving or modifying any rights stemming from the implied warranty of habitability (Real Property Law, §235-b, subd2). Compelling the tenants to first supply written notice critically circumscribes their ability to assert important rights which the Legislature intended them to have (see also, Trump Vil. Section 2 v. Semler, 111 Misc2d 167). It is not necessary under the statute that written as opposed to actual or constructive notice be given. Indeed any such requirement would render the tenants’ ability to bring suit for breach of the habitability warranty ephemeral, for even if, as the tenants here contend, ample and timely oral notice of the alleged deficiencies in the premises had been given to the landlord, their claim could be defeated simply because they neglected to give additional written notice. Tenants cannot be bound to adhere to a notice requirement which not only runs counter to the intent and spirit of section 235-b, but purports to divest them of an inalienable substantive statutory safeguard.” (Emphasis added).(Vanderhoff v. Casler, 91 AD2d 49, 50 [App Div 3rd Dept 1983]). This court agrees with the analysis in Vanderhoff. To require written notice or a Notice of Claim prior to a tenant’s assertion of their warranty of habitability rights, not only divest tenants of their rights but again shockingly tips the scale in favor of the landlord by providing another hurdle for tenants to overcome prior to obtaining repairs and habitable living conditions.Notwithstanding petitioner’s arguments the court finds that GML §50-i and PHL §157(1) are not applicable in this case. Respondent’s assertion of his counterclaim is neither based in tort or negligence and to place a restriction on respondent in asserting his warranty of habitability would seem to be against public policy. The court also does not see light in petitioner’s argument that HRA’s payment satisfied all outstanding arrears because there are still outstanding sums owed to date which would provide a setoff for any possible abatement award. Even if there were no outstanding arrears, respondent still has a right to pursue his counterclaim for the warranty of habitability Hawkins-Bond v. Konefsky, 48 AD3d 417 [App Div 2nd Dept 2008] (“dismissal of the plaintiffs complaint did not, in itself, extinguish the defendant’s counterclaims” (see, CPLR 3019(d); Ballen v. Aero Mayflower Tr. Co. Inc., 144 AD2d 407 [2nd Dept 1988]“)).Therefore, the portion of petitioner’s motion seeking to discontinue this matter is denied. A party seeking to discontinue its claim after a responsive pleading has been served needs leave of court to discontinue its case and the court bases its decision upon such terms and conditions as the court deems proper (CPLR §3217(b)). “Generally, a court will not compel a party to continue a litigation except when substantial rights of other parties have accrued, and injustice will be done to them by permitting the discontinuance NYCHA v. Foote, 58 Misc3d 494 [Civ Ct Queens Cty 2017]; see also, Winans v. Winans, 124 NY 140 [1891]. Herein, there is a possibility that respondent may be prejudiced if the proceeding is discontinued, therefore the portion of petitioner’s motion seeking discontinuance is denied.The portion of petitioner’s motion seeking to dismiss respondent’s counterclaim is also denied. As stated above, the court finds that a Notice of Claim is not required for respondent to pursue his warranty of habitability counterclaim. The matter shall be restored to the court’s calendar on January 23, 2019, Part E, Room 526 at 9:30 a.m. for all purposes including trial.This constitutes the decision and order of the Court.Dated: New York, New YorkJanuary 4, 2019
