Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for summary judgment: Papers NYSCEF Documents Numbered Order to show Cause/ Notice of Motion and 29 to 36 Opposition papers, Exhibits & Memo of Law 37 to 42 Reply Affidavits /Affirmations 43 Other 1 to 28 Decision/Order Upon the foregoing cited papers, the Decision/ Order on the respondent’s motion for summary judgment sequence # 2 is decided as follows for the following reasons: Petitioner filed this nonpayment proceeding in December 2020 seeking S6761.00 in alleged rent arrears for the period June through November 2020 for this rent stabilized unit with a monthly rent of $1143 at the time of filing of the petition and notice of petition. Following is an abbreviated summary of the history of this proceeding. This proceeding was filed during the height of COVID restrictions in the courthouse and respondent filed an initial Covid Hardship Declaration in January 2021. The Hardship Declaration stayed the proceeding from moving forward. See NYSCEF Doc # 4. Counsel for respondent filed a Notice of Appearance in May 2021 and in August 2021 counsel for both sides stipulated that if the parties did not settle before September 15, 2021, respondent’s counsel would file an answer on NYSCEF no later than September 30, 2021. NYSCEF Doc. No 6. During the interim the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (CEEFPA) was further extended, and respondent filed a second Hardship Declaration on September 13, 2021 which stayed the instant nonpayment proceeding through January 15, 2022 (see NYSCEF Doc. No. 7). Respondent, by counsel, filed her answer on February 15, 2022. Annexed to respondent’s answer was a two attorney out-of-court agreement dated January 14, 2022. The written agreement signed by counsel for both sides stated that any deposits necessary throughout the duration of legal proceedings between the parties would be kept in an escrow account owned and managed by Brooklyn Legal Services/Legal Services NYC, and that the money shall be released only upon court order or two-attorney agreement between the parties. See, NYSCEF Document # 8, page 9. The respondent’s answer raised various defenses, affirmative defenses and counterclaims including allegations of improper petitioner, improper rent demand, rent impairing violations, failure to serve notice of late payment, retaliation, the Tenant Safe Harbor Act (TSHA), rent overcharge, warranty of habitability, order to correct and civil penalties, harassment, and sought attorney’s fees. Respondent, who has resided in this rent stabilized unit for approximately twenty-three years, initially moved for summary judgment pursuant to CPLR §3212(b) on her Rent Impairing Violation defense, per N.Y. Mult. Dwell. Law §302-a; sought a 100 percent rent abatement for the period of June 2020 through May 2022, pursuant to N.Y. Mult. Dwell. Law §302-a; and sought an award of attorneys’ fees. In the alternative respondent sought permission to deposit said rents into the court. The initial motion for summary judgment was fully briefed, arguments were heard by this court and the court denied summary judgment without leave to file any future motions and without prejudice to either sides right to their claims and/or counterclaims. This court denied respondent’s initial motion for summary judgment as respondent had failed to deposit the required funds with the clerk of the court and only showed the deposit of funds sought in the petition into respondent attorney’s escrow account pursuant to the terms of the two attorney out of court agreement. This court did, however, grant respondent’s alternative request for relief which sought time to withdraw deposited monies from Brooklyn Legal Services’ escrow fund to then deposit with the clerk of the court. Respondent in support of her alternative request for relief relied on 46 E. 91st St. Assoc. v. Bogoch, 23 Misc. 3d 36, (AT 1st Dept, 2009). There the Appellate Term granted respondent’s motion seeking to file an amended answer, asserting an MDL §302-a defense, conditioned upon a deposit of the amount allegedly due at the time of the tenant’s motion to amend its answer seeking to add an MDL defense, and not the amount alleged in the petition. This court required a deposit of the amount due at the time of the filing of respondent’s answer, not the amount sought in the petition and granted respondent’s alternative relief and required the deposit of funds due through the date of the answer, filed in February 2022. Respondent was required to deposit $23,906 in funds due through the date of her answer filed in February 2022 within fifteen days of the date of the court’s order with the Clerk and submit proof of deposit via NYSCEF. See NYSCEF Doc. No. 26. The court calculated the above sum using the amount alleged in the petition of $6761, representing rent alleged for the period June 2020 through November 2020 based on a monthly rent of $1143, in addition to rent for the period December 2020 through February 2022 (the date the answer was filed), based on a monthly petition rent of $1143. It was undisputed during oral application that respondent’s ERAP application had been previously withdrawn. This amount was to be adjusted if there were any legal rent increases during this period and/or rent payments previously credited to the respondent’s rent ledger and not reflected above, during the relevant period. There was no dispute during oral argument or in petitioner’s opposition papers as to Edward’s timely deposit of the required rent deposit. Respondent now moves for summary judgment in her favor, pursuant to CPLR 3212 (b), dismissing the petition with prejudice based on her rent impairing violation defense under Multiple Dwelling Law §302-a; issuing a 100 percent rent abatement for the period of June 2020 through May 2022, pursuant to Multiple Dwelling Law §302-a; and seeks additional relief including scheduling this matter for a hearing on respondent’s counterclaims; and awarding respondent attorney’s fees. Petitioner opposes the respondent’s motion in its entirety. The court held oral argument on this motion for summary judgment sequence # 2 and finds as follows after argument and review of the moving papers. Summary judgment is a drastic remedy where a movant must make a prima facie showing of entitlement to judgment as a matter of law, while submitting sufficient evidence to eliminate any material issues of fact from the case. See, Winegrad v. New York Univ. Med. Ctr., 64 Misc NY2d 851 [1985]). Pursuant to CPLR §3212(b), summary judgment may be granted as to any cause of action, or part thereof where, upon the proof submitted, said cause of action or defense is proven sufficiently for the court to direct judgment as a matter of law. Respondent moves for summary judgment as to her rent impairing violation defense pursuant to NY Mult. Dwell. Law §302-a and seeks an order for a 100 percent rent abatement for the period of June 1, 2020 through May 3, 2022. A tenant is entitled to an abatement of rent that has been withheld if there are rent-impairing violations in the tenant’s apartment or in common areas of the building, if HPD rent-impairing violations have been on record and uncorrected for a minimum of six months and where a landlord has had notice of such violations. Pursuant to Multiple Dwelling Law §302-a(3)(a) no rent can be collected by the owners for the period that the violation remains uncorrected after the expiration of the six-month period. See, Food First HDFC Inc v. Turner, 69 Misc 2d 1202(A) (NY Civ Ct, 2020) (In Food First HDFC Inc, tenants were granted summary judgment on their MDL 302-a defense where they “fulfilled every condition to the letter of the statute.” The landlord’s position that there was no affidavit in support from respondent-tenants and that conditions were not in the tenants’ apartment and that the tenant’s denied access was unpersuasive to the court. The court in Food First granted summary judgment in the tenant’s favor based on tenant’s rent impairing violation defense and awarded her a 100 percent rent abatement for the period beginning six months after the notice of violation was issued and until the violation was certified as corrected by HPD.) Respondent seeks the same remedy here and asserts that the relief she seeks is for a nearly identical rent impairing violation. MDL §302-a(3)(c) requires that to raise the defense of a rent impairing violation, “the resident must “affirmatively plead and prove the material facts under subparagraph a, and must also deposit with the clerk of the court in which the action or proceeding is pending at the time of filing of the resident’s answer the amount of rent sought to be recovered in the action.” In this proceeding there was at least one building-wide rent impairing violation in the common areas of respondent’s building, HPD Violation Number 13170794, which was subsequently corrected as of May 3, 2022. The violation stated, as taken verbatim from the HPD violation report, stated: “M/D LAW PROPERLY FIRE RETARD IN ACCORDANCE WITH THE RULES AND REGULATIONS OF THIS DEPARTMENT THE CELLAR CEILING AT NORTHEAST.” See, NYSCEF Doc. No. 35 HPD’s notice of violation. Respondent asserts that she has met the required summary judgment standard by providing this Court with HPD records documenting the relevant facts necessary to direct judgment as a matter of law, specifically the existence and duration of the qualifying rent impairing violation. Respondent seeks a 100 percent rent abatement pursuant to NY Mult. Dwell. Law §302-a, as the violation in question existed in a common area of the subject building, becoming “ripe” under NY Mult. Dwell. Law §302-a on January 17, 2020 (six months after the date reported in July 2019), and, upon information and belief, was not certified corrected until May 3, 2022. During oral argument it was confirmed that the HPD rent impairing violation was certified as corrected as of May 3, 2022. As such it is undisputed that the rent impairing violation was corrected as of May 3, 2022. The required MDL rent impairing deposit has now subsequently been made into the court pursuant to this court’s prior decision and order. See NYSCEF Doc. No. 28. This court in its prior order determined there was no disputed issue of fact as to the HPD rent impairing violation and the period in question, which is June 2020 through May 3, 2022, when said violation was corrected. Respondent’s counsel now asserts that respondent properly interposed her defense under NY Mult. Dwell. Law §302-a(3)(c), by affirmatively pleading the defense in her answer and now by depositing the required arrears into the court as required by this court’s order dated September 8, 2023. Based on the above this court is constrained to grant respondent’s motion for summary judgment as the court has found that respondent has properly plead an MDL 302-a claim and timely made the required deposit; and awards a 100 percent abatement for the period of June 2020 through May 3, 2022, when the violation was corrected. According to the facts Respondent has demonstrated by this motion, the statute precludes Petitioner from recovery of rent “for the period that such violation remains uncorrected after the expiration of said six months…” MDL §302-a(3)(a). The Court further directs the clerk of the Court to release to Respondent the $23,932.08 that Respondent had deposited with the Court on September 18, 2023, which was memorialized as transaction #3538, minus any appropriate court fees to respondent. NYSCEF Doc. No. 28. Based on the above, the petition is dismissed without prejudice to petitioner’s right to seek any post-May 3, 2022 rent due and owing in a subsequent proceeding. After dismissal what remains of the proceeding is respondent’s counterclaims. As such, the proceeding is restored to December 13, 2024 at 9:30am in Part J, room 502 for all purposes, including to be sent out for a hearing on respondent’s counterclaims. This constitutes the decision and order of this Court. A copy of this order to be uploaded to NYSCEF and a courtesy copy to be emailed to the counsel for both sides. Dated: November 21, 2024
