The following e-filed documents, listed by NYSCEF under the motion and cross motion as: 26-37, 43-55, were read on the motion by Plaintiff for an order: a) Granting Summary Judgment against Defendants and in favor of the Plaintiff; (b) dismissing the Defendant's Answer, Affirmative Defenses, and Counter-Claims; (c) granting Plaintiff a final judgment of possession and an order of ejectment ordering the Marshal to remove all defendants from 76-13 88th Avenue, First Floor, Woodhaven, NY 11421; (d) a judgment for use and occupancy for the period of the unlawful occupancy in an amount to be determined by the Court at trial; and (e) [*2]plus attorney's fees and costs; and the cross motion by Defendants Lorna Gooden, Najwa Lert-Haan, Romayne Scarlett, Qhanna Gooden (hereinafter "Defendants") for an order: a) Denying Plaintiff's motion for summary judgment; b) Dismissing the instant petition pursuant to Article 6 of the RPAPL insufficient notice to quit; and c) Dismissing the action as another proceeding is pending.

Upon the foregoing documents, it is ordered that the motion by Plaintiff is granted and the cross motion by Defendants is denied for the following reasons:

Plaintiff asserted two causes of action sounding in ejectment and a money judgment for use and occupancy. According to the Complaint, on February 16, 2023 Plaintiff obtained title to the premises located at 76-13 88th Avenue, First Floor, Woodhaven, NY (hereinafter "premises") pursuant to a deed in lieu of foreclosure which was executed by Defendants Renee Sanderson a/k/a Renee V. Sanderson (hereinafter "Sanderson") and Selma Henry (hereinafter "Henry"), the borrowers on the note and mortgage for the premises which were the subject of a mortgage foreclosure action entitled Pennymac Loan Services, LLC v. Selma Henry, Renee Sanderson, et al, under Index Number 705927/2016. During the pendency of the foreclosure action, Sanderson and Brown transferred title of the premises to a third-party corporate entity, 88 Ave Management, Inc. Plaintiff received and recorded a Quit Claim Deed from 88 Ave Management, Inc., dated March 28, 2022 (with a June 16, 2023 Date of Deed Delivery). Defendants Lorna Gooden, Milagros Cruz Alvarez, Amanda Glum , Nohemi Cruz Aka Nohemi Lora, Francisco Cruz Aka Francisco Lora, Joaquin Alva , Manuel Fernandez, Najwa Lert-Haan Aka Najwa Ortiz Aka Na Haan, Romeo Diaz, Romayne Scarlett, Qhanna Gooden were let into the Premises by the Defendants/Borrowers Sanderson and Henry, and remain in possession. In their Answer, Defendants Lorna Gooden, Nohemi Cruz, Nohemi Lora, Najwa Lert-haan aka Najwa Ortiz aka Na Haan, and Qhanna Gooden (hereinafter "Defendants") asserted the following four affirmative defenses: failure to state a claim, lack of subject matter jurisdiction, Defendants' Emergency Rental Assistance Program (hereinafter "ERAP" application, and a "catch-all" defense that Defendants reserve their right to amend the Answer to assert any additional defenses.

Plaintiff now moves for summary judgment on its cause of action for ejectment and a money judgment for use and occupancy, and dismissal of Defendants' affirmative defenses. Plaintiff submitted the following: affidavit from William Fogleman, agent of Plaintiff; affidavit from Nicholas Ho, agent of Plaintiff; Deed In Lieu of Foreclosure; Quit Claim Deed; 90 Day Notice to Quit; and affidavits of service for Notice to Quit. According to these submissions, Plaintiff claims the following: Plaintiff obtained legal title to the premises by a deed in lieu of foreclosure on June 16, 2023. On August 9, 2023, a 90 day notice to quit was personally served upon Defendants Najwa Ortiz. On August 10, 2023, the 90 day notice to quit was served upon Defendants Lorna Gooden, Milagros Cruz Alvarez, Amanda Glum, Nohemi Cruz, Francisco Cruz, Joaquin Alva, Manuel Fernandez, Na Haan, John Doe, Jane Doe, and any other occupants at the premises by first class mail and certified mail to the premises. The 90 day notice to quit, dated July 25, 2023, provided that all persons occupying the premises must vacate the premises on or before November 30, 2023. When these Defendants did not vacate the premises, Plaintiff commenced the instant action on January 23, 2024. These Defendants continue to remain in possession. Plaintiff has not accepted any ERAP funds from any of the Defendants.

Defendants oppose and have cross moved to dismiss this action pursuant to CPLR 3211(a)(4) and (7). Defendants claim that since the lease they entered into has since expired and [*3]they are now month to month tenants, Plaintiff was obligated to serve Defendants with a six month notice to quit prior to commencing this action for ejectment. Defendants also argue that Plaintiff is not entitled to attorney's fees in an ejectment action. Next Defendants argue that this action should be dismissed because the proceeding entitled, 88 Ave Management Inc. v Lorna Gooden, Index No.: LT-312882-22/QU, is still pending in Housing Court. Defendants also submit a Notice of Pending Rental Assistance Application filed in the Housing Court proceeding, dated December 12, 2022, indicating their ERAP application is pending.

In opposition to the cross motion, Plaintiff argues, among other things that 88 Ave Management, Inc. did not have standing to commence the Housing Court action on August 25, 2022 because the quit claim deed, dated March 28, 2022, transferred ownership of the premises to Plaintiff. As to the ERAP application, Plaintiff claims that this application, filed almost two years ago, was denied. In reply, Defendants argue, among other things, that Plaintiff is not entitled to use and occupancy because Plaintiff breached the warranty of habitability in violation of RPL 235-b. Defendants submit a printout of a list of violations issued by The Department of Housing Preservation and Development (hereinafter "HPD") against the premises. Defendant claims that 15 of the 40 violations cited by HPD remain outstanding.

A summary judgment proponent must make a prima facie showing of an entitlement to same as a matter of law by tendering sufficient evidence to eliminate any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). "In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be resolved in favor of the nonmoving party" (Derise v Jaak 773, Inc., 127 AD3d 1011 [2d Dept 2015]; see Cach, LLC v Khan, 188 AD3d 1135 [2d Dept 2020]). A prima facie showing shifts the burden to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material questions of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Under CPLR 3211 (b), "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." Therefore, a plaintiff moving to dismiss a defense, pursuant to CPLR 3211 (b), has the prima facie burden of establishing that affirmative defense(s) is(are) without merit as a matter of law (see Lewis v US Bank N. A., 186 AD3d 694, 697 [2d Dept 2020]; Edwards v Walsh, 169 AD3d 865, 870 [2d Dept 2019]; Mazzei v Kyriacou, 98 AD3d 1088, 1089 [2d Dept 2012]). '"In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference'" (Mazzei, 98 AD3d at 1089, quoting Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721, 723 [2d Dept 2008]).

The Court finds that Plaintiff demonstrated its prima facie entitlement to judgment as a matter of law on the cause of action for ejectment by establishing that: (1) it is the owner of an estate in tangible real property, (2) with a present or immediate right to possession thereof, and (3) the defendant is in present possession of the estate (See City of New York v Prudenti's Rest. on the Riv., Inc., 203 AD3d 1127 [2d Dept 2022]; Noamex, Inc. v Domsey Worldwide, Ltd., 192 AD3d 817, 819 [2d Dept 2021]). The burden then shifts to Defendants to negate an element of plaintiff's proof or establish a defense to the action (See Russian Orthodox Convent Novo-Diveevo, Inc. v Sukharevskaya, 166 AD3d 1036, 1041 [2d Dept 2018]). In opposition, the Court finds that Defendants failed to raise a triable issue of fact.

As to Plaintiff's cause of action for use and occupancy, the award of use and occupancy during the pendency of an action or proceeding accommodates the competing interests of the parties in affording necessary and fair protection to both" (255 Butler Assoc., LLC v 255 Butler, LLC, 173 AD3d 651, 653-654 [internal quotation mark omitted]). "[T]he absence of privity of contract is not a bar to a cause of action to recover damages for use and occupancy (Eighteen Assocs., LLC v Nanjim Leasing Corp., 257 AD2d 559 [2d Dept. 1999]). "The obligation to pay for use and occupancy does not arise from an underlying contract between the landlord and the occupant" (id.). "Rather, an occupant's duty to pay the landlord for its use and occupancy of the premises is predicated upon the theory of quantum meruit, and is "imposed by law for the purpose of bringing about justice without reference to the intention of the parties" (id., [internal quotation mark omitted]).

The Court finds that Plaintiff also demonstrated its prima facie entitlement to judgment as a matter of law on the cause of action to recover for Defendants' continued use and occupancy of the subject property. Generally, Defendants are permitted to provide a defense of breach of habitability where Plaintiff seeks use and occupancy (Stahl Assoc. LLC v Alexandersson, — Misc 3d —, NY Slip Op 50251[U] [Civ. Ct, NY County 2020]). However, here Defendants rely upon evidence from HPD submitted for the first time in its reply papers to establish its burden of proof that Plaintiff allegedly breached the warranty of habitability. Consequently, Defendants claims that Plaintiff is not entitled to use and occupancy due to outstanding HPD violations are without merit.

As to that Plaintiff's submissions established its prima facie entitlement to dismissal of Defendants affirmative defenses. Defendants' affirmative defense alleging this Court lacks subject matter jurisdiction is without merit because this Court retains jurisdiction in an ejectment action. Further, the Housing Court action is null and void because it was brought by 88 Ave. Management, Inc. on or about August 25, 2022, after Plaintiff received and recorded a Quit Claim Deed from 88 Ave Management, Inc., dated March 28, 2022. As such, 88 Ave. Management, Inc. had no authority to bring the non-payment action and does not have the standing to maintain that action. The Court also finds that Defendants' affirmative defense alleging that Plaintiff cannot evict them in the twelve months following the receipt of ERAP payment is without merit. Even if Defendants ERAP application was accepted, Plaintiff is not bound by ERAP's requirements because Plaintiff did not receive any monies form ERAP. Moreover, Defendants only submitted a copy of the ERAP application from almost two years ago and did not dispute Plaintiff's claim that if Defendants were granted ERAP monies that ERAP granted Defendants' application more than twelve months ago. Finally, the Court finds that Defendants remaining affirmative defenses lack merit. Accordingly, the branch of Plaintiff's motion seeking summary judgment on its cause of action for ejectment is granted.

In view of the foregoing, the Court finds that Plaintiff established its entitlement to recover reasonable attorneys' fees incurred in this proceeding (501 East 87th St. Realty Co., LLC v Ole Pa Enterprises Inc., 304 AD2d 310 [1st Dept. 2003]). Turning to Defendants' cross motion, the branch seeking to deny Plaintiff's motion for summary judgment is denied. The remaining branches of Defendants' cross motion are denied for the reasons stated above. Accordingly, it is

ORDERED, that a warrant of ejectment shall issue forthwith removing Defendants Lorna Gooden, Milagros Cruz Alvarez, Amanda Glum , Nohemi Cruz Aka Nohemi Lora, Francisco Cruz Aka Francisco Lora, Joaquin Alva , Manuel Fernandez, Najwa Lert-Haan Aka Najwa Ortiz Aka Na Haan, Romeo Diaz, Romayne Scarlett, Qhanna Gooden; and it is

ORDERED, that the execution of the warrant shall be stayed for 30 days after service of a copy of the order/judgment for the settlement hereon with notice of entry; and it is

ORDERED, ADJUDGED AND DECREED, that possession of the premises, described in the complaint located at 76-13 88th Avenue, First Floor Woodhaven, NY 11421, be awarded to Plaintiff; and it is

ORDERED, that a hearing shall be held on August 5, 2025 at 10:00 am in Part 36 Courtroom 46 to determine the amount of use and occupancy, and attorneys' fees, Plaintiff is entitled to.