J. General and Affirmative Defenses to Summary Proceedings General and Affirmative Defenses to Summary Proceedings

• Jurisdiction: New York

J. General and Affirmative Defenses to Summary Proceedings

1. Overview

Although there is case law holding that summary proceedings are creatures of statute that require strict compliance with the statutory framework,¹⁷²⁵ the modern trend is to allow defects to be amended unless the tenant would be prejudiced.¹⁷²⁶ Nonetheless, nonamendable¹⁷²⁷ pleading defects, especially in the predicate notice, remain useful defenses in both nonpayment and holdover proceedings. Substantive defenses, such as the statutory warranty of habitability, may be based in contract or imputed by statute to every residential tenancy. ¹⁷²⁸

Defenses and counterclaims to summary proceedings are also found outside traditional landlord-tenant law. For instance, an additional equitable defense is available if an "unfair or commercially unreasonable" tenancy was created from a tenant's sale of property to the landlord because of an overdue mortgage. ¹⁷²⁹

Furthermore, if applicable, a summary proceeding can be dismissed on any of the grounds for dismissal enumerated in CPLR 3211(a), regardless whether the basis for dismissal is found within the realm of landlord-tenant law. Motions for dismissal under CPLR 3211 are commonly made and litigated in summary proceedings.

Of the CPLR 3211(a) defenses, the claim of lack of subject matter jurisdiction is used often,¹⁷³⁰ but seldom properly. As subject matter jurisdiction only refers to the court authority to hear the type of case before it,¹⁷³¹ a local court should have the power to hear any summary proceeding, even if it may lack the power to fix some mistake the petitioner has made.¹⁷³²

2. Traverse/Service

A proceeding may be dismissed at the threshold if the notice of petition and petition, or any required predicate notice, are not served in the manner required by statute (V.I. covers this issue in detail).

A defense to the entry of a default judgment may lie if the landlord fails to complete service of the notice of petition and petition within the statutory period of at least five and not more than 12 days before the petition is noticed to be heard. This typically entails a late filing with the clerk's office. In the case of service by personal delivery to the respondent, service is not complete unless the notice of petition and petition is filed within three days thereafter.¹⁷³³ Where service is made by one of the statutory alternatives to personal delivery, service is not complete unless the notice of petition and petition are filed within three days after the required mailings. Courts require strict compliance with the statutory notice provisions for a default judgment and will not permit a landlord to short file the affidavit of service to allow service outside the statutory period. ¹⁷³⁴

3. Lack of Multiple Dwelling Registration in New York City

One defense that may be asserted only in New York City is that the petition fails to allege whether the premises is located in a multiple dwelling, defined as any structure containing three or more residential units.¹⁷³⁵ If the building constitutes a multiple dwelling, there must be a current multiple dwelling registration on file with the New York City Department of Housing Preservation and Development, which includes a multiple dwelling registration number, together with the managing agent's name and address. Where applicable, the multiple dwelling registration information must be stated in the petition "[i]n every summary proceeding brought to recover possession of real property pursuant to section 711 of the Real Property Actions and Proceedings Law." ¹⁷³⁶

This requirement applies only if a landlord-tenant relationship exists. Failure to register as a multiple dwelling does not bar a holdover; a petitioner proceeding under RPAPL 713 need not allege the multiple dwelling status or registration number.¹⁷³⁷ This defense to monetary claims is intended to be a penalty; the tenant may not waive it.¹⁷³⁸ The parties may not stipulate to collect rents while a multiple dwelling is not registered, although a stipulation granting possession is enforceable. ¹⁷³⁹

4. Lack of a Proper Certificate of Occupancy

Unless specifically exempt, a landlord must also obtain a certificate of occupancy that accurately reflects the building's use.¹⁷⁴⁰ In New York City, the presence of an illegal apartment was traditionally a partial or complete defense to a summary proceeding. In Chan v. Adossa,¹⁷⁴¹ however, the Appellate Term, Second Department, in 2003 ended the practice of dismissing cases involving de facto multiple dwellings, or dwellings that really contain six or more units even if they appear to contain fewer than six, for lack of jurisdiction. In Chan, the court found that the "requirement that a petition brought pursuant to RPAPL 711 include the MDR [multiple dwelling registration] allegation was not intended to and cannot affect the jurisdiction of the Civil Court." ¹⁷⁴²

Under Multiple Dwelling Law § 302(b), when a valid certificate of occupancy is required for residential use, the lack of such a certificate constitutes a bar to collecting rent or the value of use and occupancy for the premises. While the command of the statute appears absolute, MDL § 302 has been held to be "a penal statute in derogation of the common law [which] should be strictly construed so that a landlord is not deprived of rent due for the use and occupation of his property."¹⁷⁴³ Thus, under settled case law, the rent forfeiture provisions of the statute may not be invoked where "the absence of the required certificate of occupancy [did not] adversely affect the habitability of the structure or render [respondent's] residential occupancy criminal or illegal." ¹⁷⁴⁴

The lack of a proper certificate of occupancy does not bar a landlord's principal claim for possession in a holdover proceeding.¹⁷⁴⁵ However, as mentioned above, it does preclude a landlord from obtaining a monetary award for use and occupancy in a holdover proceeding.

When a building is converted to a multiple dwelling without compliance with the Multiple Dwelling Law's certificate-of-occupancy requirements, rent is not, upon compliance, retroactively recoverable for the period of noncompliance.¹⁷⁴⁶ In contrast, if the only violation is a lapsed multiple dwelling registration, rent may be recovered retroactively once the building is brought back into compliance, regardless of whether the compliance is before or after the commencement of the summary proceeding. ¹⁷⁴⁷

If a building having a certificate of occupancy as a multiple dwelling contains apartments not covered by the certificate, rent or use and occupancy can be recovered for the apartments covered by the certificate of occupancy if the apartments are unaffected by the violations elsewhere in the building.¹⁷⁴⁸ Rent or use and occupancy, however, cannot be recovered for the apartments that a certificate of occupancy does not cover.¹⁷⁴⁹ If a building lacks a certificate of occupancy as a multiple dwelling but has a certificate of occupancy as a one- or two-family house, all the units are "illegal," and no rent or use or occupancy may be recovered for any of the units. ¹⁷⁵⁰

While an MDL § 302 defense omitted from a pro se answer may be added by the grant of a motion for leave to amend if the rent deposit requirement of MDL § 302-a(3)(c) is met,¹⁷⁵¹ the defense may not be raised for the first time on appeal¹⁷⁵² or as a basis to vacate a two-attorney stipulation settling a nonpayment proceeding. ¹⁷⁵³

5. Failure Accurately to State Regulatory Status and Comply with Rent Laws

Pleading and proving the unit's correct regulatory status and the landlord's compliance with the applicable rent regulation laws are required elements of a landlord's prima facie case in a summary proceeding.¹⁷⁵⁴ See V.B.1. for greater detail on this issue.

In the case of an apartment that the petition incorrectly alleges to be exempt from rent regulation and in which the petition seeks to recover a market rent, a tenant may obtain not only dismissal of the petition but also, if warranted by the facts, an affirmative judicial finding that the apartment is rent stabilized. Such a tenant may proceed with its counterclaims for a determination of the rent and any rent overcharge recovery even after the petition is dismissed.¹⁷⁵⁵ A tenant may assert these claims as counterclaims in a summary proceeding instead of bringing a plenary action or a DHCR proceeding.

6. Omitting or Misstating Required Elements of the Petition

A petition is defective if it is missing or misstates required elements of the petition under RPAPL 741, such as an accurate description of each party's interest in the property and a complete and accurate description of the premises from which removal is sought.

These omissions or misstatements, however, are typically found to be amendable and, absent prejudice to the respondent, the petition can usually avoid dismissal by the petitioner's cross-moving to amend the petition to correct those defects. See V.B.7.b.(6) for more detail regarding the required components of the petition.

7. Lack of Proper Predicate Notice/Rent Demand Notice

If a statutory predicate notice or rent demand was not properly and timely served or is substantively defective or insufficient, the proceeding must be dismissed. See V.B.6. for discussion of the requirements of a predicate notice, and V.C.4. for the requirements of a rent demand in nonpayment proceedings. Unlike a petition, predicate notices and rent demands are not amendable;¹⁷⁵⁶ defects or omissions may not be corrected.

8. Predicate Notice Vitiated/Tenancy Reinstated

After the expiration of a notice of termination or a nonregulated lease term, certain actions by the landlord will serve to vitiate the notice of termination or reinstate the tenancy. These actions include accepting rent after the expiration of the notice of termination but prior to the institution of the summary proceeding¹⁷⁵⁷ (with certain limited exceptions in which it may be...