D. Answering a Summary Proceeding Answering a Summary Proceeding

• Jurisdiction: New York

D. Answering a Summary Proceeding

Section 743 of the RPAPL provides that the "answer may contain any legal or equitable defense, or counterclaim." A lease provision limiting a tenant's right to assert counterclaims in a summary proceeding will generally be enforced.¹⁴⁷² An exception exists if the counterclaim is "inextricably intertwined" with the landlord's claim or the tenant's defense. ¹⁴⁷³

A counterclaim not intertwined with the landlord's claim or the tenant's defense will generally be severed from the summary proceeding, even absent a waiver-of-counterclaims provision, since the maintenance of unrelated counterclaims will delay resolution of the summary proceeding.¹⁴⁷⁴ In a summary proceeding, the court has the discretion to permit a collateral defense concerning title.¹⁴⁷⁵ While many courts disallow inconsistency in the petition, in keeping with the liberal approach to pleadings, all courts allow inconsistent defenses to be pled in an answer¹⁴⁷⁶ and liberally allow amendment, absent prejudice arising from the delay in seeking leave to amend. ¹⁴⁷⁷

In a nonpayment proceeding in New York City, the tenant must answer before the clerk within 10 days of service of the notice of petition.¹⁴⁷⁸ In all other summary proceedings, the answer is due when the petition is noticed to be heard. HSTPA eliminated the rule requiring the answer to be served earlier when the petition is served at least eight days before the petition is noticed to be heard. Ambiguity as to whether an answer has been interposed can interfere with the prerequisite to a motion for summary judgment that has been joined.

A pre-answer motion to dismiss filed within the time to answer does not automatically extend the time to answer. Respondents in a holdover proceeding, or in a non-payment proceeding outside the City of New York, will not be held in default for failing to interpose a written answer if they appear in court.¹⁴⁷⁹ In a non-payment proceeding in the City of New York, a default judgment may be entered notwithstanding the pendency of a motion to dismiss.¹⁴⁸⁰ Upon denial of the motion, it is within the court's discretion to extend the time to answer.¹⁴⁸¹ To preserve the right to answer, a respondent wishing to make a pre-answer motion to dismiss a non-payment proceeding may move by order to show cause to request a temporary restraining order to toll the respondent's time to answer while the motion is pending. If the record discloses the absence of a genuine issue of fact, an extension of time to answer will not be granted. ¹⁴⁸²

An adjournment of the hearing or return date for the tenant to obtain counsel has been held to implicitly extend the tenant's time to answer.¹⁴⁸³ Some courts have held, however, that if a demand is included in the notice of petition that the answer be made three days before the petition is noticed to be heard, an adjournment of the hearing will not automatically extend the time to answer. ¹⁴⁸⁴

The answer may be oral or in writing.¹⁴⁸⁵ If written, the answer need not be verified.¹⁴⁸⁶ RPAPL 743 provides that "any person in possession or claiming possession of the premises may answer,"¹⁴⁸⁷ but this rule has qualifications.

In Full Value Realty Co. v. Stone,¹⁴⁸⁸ the court held that an undertenant named in the petition has a right to answer upon the tenant's default and to require the landlord to prove the allegations made in the petition.¹⁴⁸⁹ Otherwise, the undertenant might be removed by a proceeding commenced as a result of collusion between the landlord and the tenant. In Neusberger v. Prodolefsky,¹⁴⁹⁰ an undertenant was permitted to appear in a holdover proceeding and to challenge the landlord's proof with respect to the alleged expiration of the term. ¹⁴⁹¹

The foregoing rule is predicated in part on the notion that an undertenant is entitled to pay the rent and thus defeat the proceeding. A 2008 Appellate Division case, which provides in dicta "that a subtenant has the right to perform covenants of the paramount lease breached by its sublessor in order to protect its possession,"¹⁴⁹² supports this position. Additionally, courts have interpreted the reference made in RPAPL 743 to the right of "any person in possession or claiming possession of the premises" to answer a summary proceeding to extend to any occupant claiming to be in possession.¹⁴⁹³ But the weight of authority supports the principle that a landlord is not required to accept performance by the tender of rent from an undertenant ¹⁴⁹⁴ or other third party.¹⁴⁹⁵

An occupant of a rent-regulated apartment who does not have succession rights has no standing to defend a nonpayment proceeding brought against the tenant of record.¹⁴⁹⁶ By contrast, occupants who are able to make a colorable showing that they have a right to succeed to the apartment have been permitted to defend nonpayment proceedings brought against the tenant by appearing and asserting their succession rights as an affirmative defense. ¹⁴⁹⁷

Section 743 of the RPAPL provides that the "answer may contain any legal or equitable defense, or counterclaim." This language has been interpreted to mean that the answer may contain a legal or equitable defense, or a legal counterclaim, but not an equitable counterclaim. ¹⁴⁹⁸

In Susquehanna S.S. Co. v. A.O. Andersen & Co., involving a claim for reformation, Judge Cardozo stated that a "judicial declaration may be had as an incident to the litigation of a defense with the same effect as if incidental to the litigation of a counterclaim" and that "all that is necessary is that the equities when established be destructive of the plaintiff's right."¹⁴⁹⁹ Applying this rule, the courts, although recognizing that affirmative equitable relief is unavailable in summary proceedings, have permitted the interposition in these proceedings of such equitable defenses as reformation,¹⁵⁰⁰ rescission,¹⁵⁰¹ oral extension of a lease and waiver of the requirement that the extension be in writing,¹⁵⁰² constructive life estate,¹⁵⁰³ constructive trust,¹⁵⁰⁴ and duress.¹⁵⁰⁵ An answer may also contain a title defense, such as that the respondent owns the property by adverse possession. ¹⁵⁰⁶

These cases reflect a judicial tendency to limit the assertion of equitable defenses based on whether the claim is used "as a shield" rather than "as a sword,"¹⁵⁰⁷ not on whether affirmative equitable relief, such as canceling the instrument on which a petitioner relied, is required.¹⁵⁰⁸ Other courts have taken the narrower view that a...