The following e-filed documents, listed by NYSCEF document number (Motion 001) 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63 were read on this motion to/for JUDGMENT — SUMMARY. DECISION + ORDER ON MOTION BACKGROUND Plaintiff commenced this action seeking damages for alleged rent overcharge arising out of his tenancy at Apt 10 at 224 Lafayette Street, New York, New York (Subject Premises). Defendant has asserted a counterclaim for ejectment. PENDING MOTION On August 3, 2020, plaintiff moved for summary judgment on his overcharge complaint and his claim for attorneys’ fees, and for an order “striking” the counterclaims and defenses. The motion appears to have been fully briefed as of October 7, 2020. In 2022, the action was assigned to this Court. On October 3, 2022, plaintiff’s counsel wrote to advise this Court that no decision had ever been issued on the motion. DISCUSSION Plaintiff Has Failed to Meet Its Burden in Establishing Summary Judgment on The Overcharge Complaint In order to prevail on a motion for summary judgment, the moving party must establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). Absent such a prima facie showing, the motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]). However, “[o]nce the movant makes the required showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial” (Dallas-Stephenson v. Waisman, 39 AD3d 303, 306 [1st Dept 2007], citing Alvarez, 68 NY2d at 324). “[A]ll of the evidence must be viewed in the light most favorable to the opponent of the motion” (People v. Grasso, 50 AD3d 535, 544 [1st Dept 2008]). “On a motion for summary judgment, the court’s function is issue finding, not issue determination, and any questions of credibility are best resolved by the trier of fact” (Martin v. Citibank, N.A., 64 AD3d 477,478 [1st Dept 2009]; see also Sheehan v. Gong, 2 AD3d 166,168 [1st Dept 2003] ["The court's role, in passing on a motion for summary judgment, is solely to determine if any triable issues exist, not to determine the merits of any such issues"], citing Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The complaint in this action was not verified by plaintiff. While plaintiff does submit a brief affidavit in support of the motion, the affidavit fails to provide basic information such as when and how plaintiff’s tenancy commenced. Instead plaintiff states “I reiterate the statements made in the Complaint and incorporate them herein.” While CPLR §105(u) allows a verified pleading to be used as an affidavit, plaintiff cites to no legal authority allowing a party to subsequently verify a complaint through an affidavit. Assuming such authority did exist, the court would expect the affidavit to explicitly state the allegations in the complaint are true to the deponent’s knowledge, a statement not present in Mr. Munday’s affidavit. It is well settled that a party’s burden on summary judgment is not met by merely”…incorporation by reference of the allegations contained in pleadings or bills of particulars, verified or unverified.” (Indig v. Finkelstein 23 NY2d 728, 729; Schultz v. Von Voight 86 NY2d 865). Furthermore, the court notes that little to no discovery appears to have taken place in this action and an initial Preliminary Conference has been scheduled by this court in January 2023. Based on the foregoing, the court finds that plaintiff has failed to meet his burden in seeking summary judgment and denies the motion without prejudice to plaintiff moving again for summary judgment after the completion of discovery and the filing of a note of issue. Plaintiff’s Motion to Dismiss Defendants’ Defenses and Counterclaim Is Granted in Part The third, fifth and eighth affirmative defenses are dismissed as defendants did not oppose their dismissal and agreed to withdraw same. Similarly, defendants have consented to the dismissal of the counterclaim for ejectment, without prejudice. The first defense asserted is failure to state a cause of action. The motion to dismiss this defense is denied as the defense may be raised at anytime (Riland v. Frederick S. Todaman & Co 56 AD2s 350). The second affirmative defense is unclean hands. “The doctrine of unclean hands applies when the complaining party shows that the offending party “is guilty of immoral, unconscionable conduct and even then only ‘when the conduct relied on is directly related to the subject matter in litigation and the party seeking to invoke the doctrine was injured by such conduct’” (National Distillers & Chem. Corp. v. Seyopp Corp., 17 N.Y.2d 12, 15-16, 267 N.Y.S.2d 193, 214 N.E.2d 361 [1966], quoting Weiss v. Mayflower Doughnut Corp., 1 N.Y.2d 310, 316, 152 N.Y.S.2d 471, 135 N.E.2d 208 [1956]; see Kopsidas v. Krokos, 294 A.D.2d 406, 407, 742 N.Y.S.2d 342 [2d Dept. 2002]).” Arista Dev., LLC v. Clearmind Holdings, LLC, 207 A.D.3d 1127, 1130 (2022). The defendant asserts that plaintiff permanently moved back to England, advised the landlord he was permanently vacating, and asked the landlord to give a lease to the individual remaining in possession of the Subject Premises. It was only after the landlord refused to do so that plaintiff stated he had changed his mind and would be remaining in New York, and that this action was filed. It is unclear whether plaintiff has to date returned to live in the Subject Premises and exactly who is paying the rent for the Subject Premises, based on all of the foregoing, the motion to dismiss the defense is denied. The motion to dismiss the tenth affirmative defense is granted without opposition. The court has considered plaintiff’s arguments to dismiss the remaining defenses and finds them unavailing. WHEREFORE it is hereby: ORDERED that plaintiff’s motion for summary judgment is denied without prejudice to renewal after the completion of discovery and the filing of a note of issue; and it is further ORDERED that defendant’s counterclaim and third, fifth, eighth and tenth affirmative defenses are dismissed; and it is further ORDERED that, within 20 days from entry of this order, plaintiff shall serve a copy of this order with notice of entry on the Clerk of the General Clerk’s Office (60 Centre Street, Room 119); and it is further ORDERED that such service upon the Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on the court’s website at the address www.nycourts.gov/supctmanh);]; and it is further ORDERED that any relief not expressly addressed has nonetheless been considered and is hereby denied; and it is further ORDERED that this constitutes the decision and order of this court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: October 11, 2022
