Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Thomas M. Fitzpatrick, J.), entered June 6, 2005. The final judgment, after a nonjury trial, awarded landlord possession and the sum of $8,283.

Final judgment modified by reducing the amount of the monetary award to the sum of $8,000; as so modified, affirmed without costs.

In this nonpayment proceeding, the petition seeks monthly rent in the amount of $1,250 for December 2004 and January through April 2005. Tenant appeared pro se and asserted, inter alia, that service was defective and that the amount of rent demanded was not proper, in that it did not conform with the amount which he had agreed to in the lease, $1,200. At trial, landlord David Friedman testified that, at some point, tenant's brother agreed to pay rent on behalf of tenant in the negotiated monthly amount of $1,240. Friedman testified that he discussed the rent only with tenant's brother and not with tenant. However, tenant's brother was not called as a witness. Friedman also testified that the $1,250 per month demanded in the petition and rent notice was a typographical error and that he was not asking for more than $1,240 per month. He admitted that tenant had not personally agreed to pay rent of more than $1,200. After trial, the Civil Court awarded landlords possession and arrears of $8,283, based upon a monthly rent of $1,240, less a $400 abatement. This appeal by tenant Ben "Benjamin" Eisner ensued. [*2]

The affidavit of substituted service of the notice of petition and petition constituted prima facie proof of proper service and tenant's conclusory challenge to service was insufficient to warrant the granting of a traverse hearing (e.g. Francis v Francis, 48 AD3d 512 [2008]; Chemical Bank v Darnley, 300 AD2d 613 [2002]; Manhattan Sav, Bank v Kohen, 231 AD2d 499 [1996]). In any event, tenant's objection to the service of the petition and notice of petition was waived by his interposing unrelated counterclaims for slander and harassment. Notwithstanding tenant's argument that these are related counterclaims, a counterclaim is considered related for the purpose of determining when a jurisdictional defense is waived only if the failure to assert the counterclaim would bar its later assertion under principles of collateral estoppel (Textile Tech. Exch. v Davis, 81 NY2d 56 [1993]). Tenant does not show that the counterclaims for slander and harassment would have been barred by collateral estoppel if not asserted herein.

As the matter had been marked final against tenant, and as tenant was unable or unwilling to make the required rent deposit (RPAPL 745 [2]), the court did not improvidently exercise its discretion in refusing his request for a further adjournment.

Had tenant raised the issue of lack of a predicate rent notice in his amended answer, landlord would have been required to prove the service of said notice at trial and could not rely upon the affidavit of its service (see Bham v Wilson, 10 Misc 3d 72 [App Term, 9th & 10th Jud Dists 2005]; 2 Dolan, Rasch's Landlord and Tenant — Summary Proceedings § 32:15 [4th ed]). However, tenant failed to raise this claim in his amended answer, and, thus, the trial court properly ruled that service of the rent notice was not in issue at the trial.

The trial court properly found that the testimony of landlord David Friedman was sufficient to establish that tenant owed rent for seven months. With respect to the amount of rent demanded in the predicate notice and petition, we note that tenant did not challenge the sufficiency of the rent demand in his amended answer or by pre-trial motion. In any event, the proof showed that landlords had a good-faith basis for demanding rent at the rate of $1,240 per month (ShopRite Supermarkets, Inc. v Yonkers Plaza Shopping, LLC, 29 AD3d 564 [2006]; 402 Nostrand Ave. Corp. v Smith, 19 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2008]; 501 Seventh Ave. Assoc., LLC v 501 Seventh Ave. Bake Corp., 7 Misc 3d 137[A], 2005 NY Slip Op 50799[U] [App Term, 1st Dept 2005]), and the "typographical error" in demanding $1,250 instead of $1,240 per month was de minimis and did not invalidate the rent notice or the petition (Oxford Towers Co., LLC v Leites, 41 AD3d 144 [2007]). However, the proof at trial failed to establish that landlord's agreement with tenant's brother to pay $1,240 per month was sufficient, under the circumstances presented, to bind tenant (see generally Holm v C.M.P. Sheet Metal, 89 AD2d 229 [1982]). Thus, landlord failed to establish the existence of an agreement by tenant to pay more than $1,200 in rent per month.

Tenant failed to establish that the building in which his apartment was located was a de facto multiple dwelling during the period in question, and similarly failed to establish his entitlement to a larger abatement than that which was granted by the trial court.

Accordingly, the judgment is modified to provide for an award of seven months' rent at the rate of $1,200 per month, less the $400 abatement. We note that any issues with regard to tenant's brother's liability, if any, are not before us.

We have examined tenant's other contentions and find them to be without merit.

Pesce, P.J., Golia and Steinhardt, JJ., concur. [*3]
Decision Date: March 24, 2009