Civil Court of the City of New York, Queens County, June 14, 2018

Queens Legal Services (Priam Saywack of counsel) for respondent.

Tenenbaum Berger & Shivers, LLP (Ronete Koop of counsel) for petitioner.

Respondent moves for leave to file an amended answer pursuant to CPLR 3012 (d). In the amended answer, respondent seeks to assert several defenses to the present proceeding, as well as make several counterclaims. Petitioner opposes the motion to file an amended answer and, alternatively, if the amended answer is granted, moves for the alleged jurisdictional defense be struck.

Respondent has lived with his family in their apartment for over 20 years. In that time, respondent alleges that he and his family have been subject to numerous attempts by the current{**61 Misc 3d at 276} landlord to force them to evacuate the premises. Chief among these allegations is the lack of adequate heat in the winter. Despite these issues, the respondent and his family have continued to reside in the apartment as it is rent stabilized.

In August, petitioner began a holdover proceeding. In her petition, petitioner alleged that she wanted the apartment for personal use and respondent was personally served with a notice of nonrenewal. Specifically, petitioner alleged that her son-in-law, who is a pilot, switched companies and is now based out of New York. As a result, she wanted the respondent's apartment for use by her daughter and family. Respondent alleges that in reality, petitioner does not want the apartment for personal use, but to evict them so she can rent it to someone else at a higher rate.

During the proceeding, respondent's wife retained the services of Queens Legal Services and sought to enter an amended answer. The answer included an allegation that the current respondent, Mr. Bravo, was never personally served with the predicate notice as stated in the affidavit of service. The answer sought a traverse hearing among other remedies. After a hearing solely on the motion to allow respondent's wife to file an amended answer, the court struck the [*2]jurisdictional defense, but only because there was no affidavit supporting it. The court, using very specific language, stated that the issue was dismissed without prejudice for respondent to file and assert as a defense. Respondent then moved to file an amended answer, including the jurisdictional defense and an affidavit in support of it, as well as making various counterclaims. Respondent's answer is essentially the same as his wife's answer. Petitioner sought to have the motion denied or, alternatively, have the jurisdictional defense stricken.

[1] The Second Department has long noted that certain elements must be met when attempting to file an amended answer. "Leave to amend a pleading should be freely given, provided the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit." (Matter of Rhoda v Avery, 155 AD3d 737, 738 [2d Dept 2017] [citations omitted]; see also Pettinato v Sunscape At Bay Shore Home Owners Assn., 97 AD2d 434 [2d Dept 1983]; Dusovic v New Jersey Tr. Bus Operations, 124 AD2d 634 [2d Dept 1986].) A meritorious defense is one that "addresses {**61 Misc 3d at 277}the substance or essentials of a case . . . ." (Black's Law Dictionary 511 [10th ed 2014].) Mr. Bravo asserts as a defense that he never received the predicate notice and the person described in the process server's affidavit is not him. As receipt of the notice is essential to the case at hand, it is clear he has a meritorious defense. Having met the "merit" prong for finding leave, the court turns to the issues of prejudice and surprise.

Petitioner alleges that if leave to file the amended answer is granted it would prejudice the petitioner due to the amount of time that has already elapsed. While time is a factor, traditionally it is not considered to have significantly prejudiced the parties unless so much time has elapsed that allowing for an amended answer or pleading would be unreasonable. (See e.g. Bloom v Town Bd. of Town of Yorktown, 88 AD2d 895 [2d Dept 1982] [noting that while considerable money was already expended by the plaintiffs, the money was not a factor and some delay was excusable]; Berger E. Corp. v Grigg, 6 Misc 3d 76 [App Term, 1st Dept 2004] [holding that an allegation of delay causing prejudice, without showing more, was insufficient].)

In general, prejudice is not shown unless the party, "has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position." (Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 24 [1981].) Thus, it is well settled that a mere delay to a trial is not enough to find prejudice. In this case, the defenses and counterclaims asserted by respondent mirror those in Mrs. Bravo's earlier answer. Thus, petitioner cannot claim she did not have time to prepare their case, or that she has been hindered by the delay.

Finding that mere delay alone is not enough to show prejudice, the court must then determine if there is an excuse for the delay. While there is no concrete reason given by the respondent or his attorney in his motion, there are several factors the court takes into consideration. The court notes that respondent and his wife are both represented by Queens Legal Services. As the defense petitioner seeks to have stricken from his answer was raised in his wife's answer, it is logical to presume that respondent likely did not believe he needed to file a separate answer through Queens Legal Services and that the answer originally filed was for both himself and his wife. It is highly likely this belief would have persisted through the original proceeding before the court. As respondent has a{**61 Misc 3d at 278} meritorious defense and given the liberal legal standard, the court believes the excuse for the delay can be found and is valid.

As to the issue of surprise, if the potential answer and defenses were known to petitioner, then it can hardly be said petitioner was surprised by them. (See e.g. Godell v Greyhound Rent A Car, 24 AD2d 568, 569 [2d Dept 1965].) Nothing in this answer is a surprise or particularly new. In fact, the [*3]petitioner's response in favor of denial implies that petitioner has already taken steps to gather evidence for a traverse hearing through collecting the affidavits of service, as well as alleged photos taken of the front door by the process server. (Petitioner opp ¶ 7.)

[2] Petitioner, in her opposition papers, seeks to have the affirmative defense of lack of jurisdiction struck from respondent's amended answer. Petitioner asserts two reasons for this to be done: (1) as a general rule, when a counterclaim that is unrelated to the original claim is entered, then a jurisdictional defense has been waived; and (2) the issue has already been litigated and was struck from an earlier answer by the court. Neither argument is particularly persuasive.

The court agrees with petitioner that generally, if a counterclaim is asserted which does not rise from the initial petition, then a jurisdictional defense is considered to be waived. In the original petition, petitioner asserts a claim not only for the apartment, but also use and occupancy, as well as attorney's fees. In his answer, respondent asserts defenses of: (1) lack of jurisdiction due to defective service; (2) lack of good faith; (3); breach of warranty of habitability; and (4) retaliation. Respondent then asserts counterclaims seeking an injunction to force repairs to the apartment, damages for breach of warranty of habitability, correction of housing code violations, attorney's fees, and a claim for wrongful eviction. The issue of wrongful eviction is clearly related to and arising out of the current proceeding. Similarly, the claim for fees not only comes out of the cost of defending the current proceeding, but also flows from the provisions of Real Property Law § 234. (See e.g. Kuttas v Condon, 290 AD2d 492, 493 [2d Dept 2002].) Finally, as the petition seeks use and occupancy, respondents can seek to have this offset through their action for breach of warranty of habitability. Thus, the warranty of habitability claim flows from the original petition as well. This leaves us with two counterclaims that, ostensibly, are not related to the current proceeding at all.{**61 Misc 3d at 279}

Petitioner cites the case of Textile Tech. Exch. v Davis (81 NY2d 56 [1993]). In that case, the Court of Appeals noted there could be an exception to the general rule that any counterclaim not arising from the petitioner's claim would waive the assertion of a jurisdictional defense. (Id. at 59.) The Court said: "While all counterclaims are 'permissive,' the spectre of collateral estoppel often requires a defendant to bring certain counterclaims in order to avoid the risk of later preclusion. Where a defendant in effect must bring such counterclaims, it would be unfair to deem those counterclaims to waive a jurisdictional defense." (Id. [citations omitted].)

While the two remaining counterclaims are not directly related to the petition by the petitioner, they are related to the defenses raised by the respondents. Thus, should the respondents fail to raise them at this point, as Professor Siegel notes, they would likely find themselves barred from raising these issues in a later suit due to collateral estoppel. (Siegel, NY Prac § 224 at 372 [4th ed 2005].) As it is clear that respondent's affirmative defense requires him to also bring the counterclaims or risk having the issue precluded from future trials, the jurisdictional defense is not considered waived under Davis.

Finally, the court looks to the previous order. Looking at the court's order, it appears the reason the defense was initially struck was not because the matter was litigated on its merits, but due to Mrs. Bravo failing to provide an affidavit in support of that particular defense. The court, in its decision and order, specifically stated that while the defense was struck from Mrs. Bravo's amended answer, it was without prejudice to a future answer by respondent. Thus, it flows logically from the language used that the court meant for respondent to file an amended answer asserting this defense, supported by an affidavit.

The motion to file an amended answer is granted and petitioner's cross motion to strike the first affirmative defense is denied. Matter is adjourned to July 9, 2018, 9:30 a.m. for traverse and trial.