Petitioner, as limited by its briefs, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Anil C. Singh, J.), dated February 3, 2011, which denied, in part, its motion to dismiss respondent's "First counterclaim and defense" in a holdover summary proceeding.

Per Curiam.

Order (Anil C. Singh, J.), dated February 3, 2011, affirmed, with $10 costs.

Respondent's "First counterclaim and defense," based upon his claimed timely tender of the monthly fees payable to the petitioner cooperative corporation in connection with the parking space here at issue, was sufficient to withstand petitioner's dismissal motion, with the court properly excising those portions of the counterclaim seeking equitable and declaratory relief beyond its authority to grant. Although the payment issue may properly be considered at trial in assessing the legitimacy of petitioner's actions in terminating respondent's parking license, we emphasize that a determination of the issue favorable to tenant would not serve to end the inquiry in the face of evidence that petitioner's parking determination was otherwise made in good faith and in furtherance of the cooperative's legitimate interests (see Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530 [1990]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 12, 2012