Civil Court of the City of New York, New York County, December 20, 2018

Green & Cohen P.C., New York City, for petitioner.

Goldberg, Scudieri & Lindenberg, P.C., New York City, for respondents.

After considering the testimony and the other evidence at the trial of this nonpayment proceeding, the court makes the following findings of fact, reaches the following conclusions of law, and grants petitioner a judgment (1) against respondent Households Headed by Women, Inc. (hereinafter HHBW) for possession and for $51,150 as all rent due for the period ending September 30, 2018, (2) against respondent Winfield for possession only, and (3) dismissing respondents' counterclaims. One or more warrants may issue forthwith without stay of execution. Upon service of a copy of the judgment against HHBW with notice of entry, and upon papers setting forth the particulars thereof, petitioner may move for an award of attorney's fees and such other relief as may seem just.{**62 Misc 3d at 866}

In the petition dated February 20, 2018, petitioner alleges it is the "PRIME TENANT, the Owner\landlord" of the premises, that HHBW is the tenant, that Winfield is a subtenant, that the monthly rent for the premises is $4,650, and that the rent has not been paid since November 2017.

By prior counsel respondents interposed an answer sworn to on March 20, 2018, in which they asserted a general denial, an affirmative defense that personal jurisdiction was lacking, an [*2]affirmative defense of breach of the warranty of habitability, and a counterclaim for attorney's fees pursuant to Real Property Law § 234. Thereafter respondents moved for, among other things, leave to interpose an amended answer that added a counterclaim for rent overcharge. By a decision and order dated July 5, 2018, the court (Marin, J.), among other things, granted the requested leave and deemed the proposed amended answer duly interposed.

[1] A claim for attorney's fees pursuant to Real Property Law § 234 need not be sought as a counterclaim; the claim may be asserted independently. In pertinent part Real Property Law § 234 provides that such fees "may be recovered as provided by law in an action commenced against the landlord or by way of counterclaim in any action or summary proceeding commenced by the landlord against the tenant." As a result, respondents' claim for attorney's fees is "unrelated" to the defense of the instant proceeding, i.e., need not be asserted here to avoid "the spectre of collateral estoppel . . . [and] the risk of later preclusion." (Textile Tech. Exch. v Davis, 81 NY2d 56, 59 [1993] [citation omitted].) Accordingly, the court holds that respondents' interposition of the counterclaim waived their defense that personal jurisdiction had not been secured.

The court also holds that a petition, notice of petition, and predicate rent demand were duly served, that the premises are located in a multiple dwelling duly registered as such with the City of New York's Department of Housing Preservation and Development, that respondents have not paid any rent since November 2017, and that petitioner otherwise proved a prima facie case.

More specifically, the court finds that pursuant to a lease dated October 11, 2017, which document characterizes itself as a renewal lease, nonparty 12 East 86th Street LLC rented the premises to petitioner for a period of one year beginning on October 1, 2017. The court also finds that the parties entered into a lease dated September 15, 2017, that characterizes itself{**62 Misc 3d at 867} as a "Sublease Extension Rider." This agreement was made by petitioner as "Prime Tenant," HHBW as "Subtenant," and Winfield as "Occupant." This agreement extended to September 30, 2018, the term of a preexisting but expired lease for the premises and fixed the monthly rent at $4,650. The court finds that no rent was paid during the 11 months of November 1, 2017, through September 30, 2018, that the accrued arrears for that period are $51,150, and the court amends the petition to include all rent due through that date and grants petitioner a judgment for that amount.

The court finds that there was no lease or other agreement to continue the landlord/tenant relationship for the period of time after September 30, 2018. The court has no basis to deem the lease renewed as of October 1, 2018 (see e.g. Samson Mgt., LLC v Hubert, 92 AD3d 932 [2d Dept 2012]). As a result, while use and occupancy may be due for the post-lease period, the court cannot find that any rent is due.

"It is elementary that a nonpayment proceeding must be predicated upon an agreement by the tenant to pay the rents demanded (RPAPL 711 [2]; see Matter of Jaroslow v Lehigh Val. R.R. Co., 23 NY2d 991 [1969]; Krantz & Phillips, LLP v Sedaghati, 2003 NY Slip Op 50032[U] [App Term, 1st Dept 2003])." (Licht v Moses, 11 Misc 3d 76, 78 [App Term, 2d Dept, 2d & 11th Jud Dists 2006].)

Respondents defended on the ground that petitioner had breached the warranty of habitability. To establish this defense respondent had to make four showings: (1) that there were conditions at the premises that rendered them less than habitable, (2) that respondent had notified petitioner of the conditions or that petitioner otherwise knew of them, (3) that respondent [*3]provided petitioner with a reasonable opportunity to cure the conditions but that petitioner did not cure them, and (4) that the conditions had a quantifiably negative impact on respondent's use of the premises. (Anoula Realty Corp. v Weiss, 16 Misc 3d 133[A], 2007 NY Slip Op 51496[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; Liberti v Fitzpatrick, 1 Misc 3d 134[A], 2003 NY Slip Op 51643[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2003].)

[2] Only HHBW, but not Winfield, may assert this defense. Winfield was not a tenant or subtenant of the premises, but only, as designated in the parties' agreement dated September 15, 2017, an occupant of the premises. Winfield had no obligation{**62 Misc 3d at 868} to pay rent and accordingly she may not seek a reduction in that obligation.

[3] The court holds that HHBW did not establish the elements of this defense. HHBW did not offer anything either probative of complaints to petitioner about conditions at the premises or probative of having made the premises available on reasonable notice to petitioner so that any alleged conditions might have been addressed. Respondents did offer an email dated September 18, 2018^[FN*]—i.e., well after the instant proceeding had been commenced—to petitioner in which Winfield complained that the conditions at the premises were, both at the time she moved in more than a year before and continuing to the present, less than they should have been. However, the email, in which Winfield also seeks to be released from the lease, is plainly an attempt to negotiate a settlement and, even if admissible, has no probative value for that reason. Also the email does not include a request to petitioner to cure the conditions complained of, and the email does not offer access to the premises to cure the conditions complained of.

Respondents counterclaimed on the ground of rent overcharge. However, they offered nothing probative thereof. Accordingly, the court grants petitioner a judgment dismissing this counterclaim.