| Nagel v Harte |
| 2005 NY Slip Op 51983(U) [10 Misc 3d 131(A)] |
| Decided on December 7, 2005 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Landlord appeals from an order of the Civil Court, New York County (Lydia C. Lai, J.), dated October 8, 2004, which granted tenant's motion for summary judgment dismissing the petition in a nonpayment summary proceeding.
PER CURIAM:
Order (Lydia C. Lai, J.), dated October 8, 2004, affirmed, with $10 costs.
The parties' stipulation of facts establishes that tenant overpaid rent for the years 1994 through 2000. In 2001, following the issuance of a DHCR order establishing the legal rent for the subject apartment, tenant sought to recoup her overpayment by withholding rent, ultimately resulting in the commencement of this nonpayment proceeding.
We agree with Civil Court that pursuant to CPLR § 203(d), tenant is permitted to assert an overcharge defense to landlord's rental claims. While any overcharge claim otherwise would be barred by a two-year statute of limitations (9 NYCRR § 2206.8[a][1]), the overcharge defense asserted by tenant "arose from the transactions, occurrences or series of transactions or occurrences" upon which landlord's rental claims depend. Consequently, "it is not barred to the extent of the demand in the [petition] notwithstanding that it was barred at the time the claims asserted in the [petition] were interposed" (CPLR § 203[d]; cf. Immerblum v Grefe, NYLJ, Jan. 14, 1997, at 26, col 4, aff'd on other grounds 247 AD2d 281 [1998]).
This constitutes the decision and order of the court.
I concur I concur I concur
Decision Date: December 07, 2005