| Licorish v Nor-Win Realty Corp. |
| 2006 NY Slip Op 51839(U) [13 Misc 3d 130(A)] |
| Decided on September 29, 2006 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendants appeal from an order of the Civil Court, New York County (Matthew F. Cooper, J.), entered December 16, 2004, which denied defendants' cross-motion to dismiss the complaint and granted plaintiff's motion for summary judgment in the principal amount of $5,843.80.
Per Curiam:
Order (Matthew F. Cooper, J.), entered December 16, 2004, affirmed, with $10 costs.
The plaintiff-tenant established, prima facie, that the amount of rent collected by defendant-landlords exceeded the legal rent as determined by DHCR, thereby meeting her initial burden as the proponent of a summary judgment motion. In opposition, defendants failed to raise a triable issue of fact. The prior DHCR orders fixing the amount of lawful rent cannot be collaterally attacked in this action (see Klaus v Joy, 85 AD2d 603 [1981]; London Terrace Gardens v Grabina, 3 Misc 3d 128A, 2004 NY Slip Op 50346[U][2004]) and defendants' Statute of Limitations defense was waived because it was not raised in their answers or by way of a pre-answer motion to dismiss (see CPLR 3211[e]; Dougherty v City of Rye, 63 NY2d 989, 991-992 [1984]; Johnson v Civilian Complaint Review Board, 30 AD3d 201 [2006]).
We have considered defendants remaining arguments and find them unavailing.
This constitutes the decision and order of the Court.
Decision Date: September 29, 2006