Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:

470 MANHATTAN AVE. LLC., (hereinafter "Petitioner"), commenced this holdover proceeding against DANICA BARBOZA ^[FN1] (hereinafter "Respondent"), and John and Jane Doe (collectively, "Respondents"), seeking possession of 18 Eckford Street, Apt. 2C, Brooklyn, New York ("the subject premises") on the basis that Respondents are licensees of the former tenant of record, whose licenses have since been terminated. (NYSCEF Doc. 1). Respondent interposed an answer, through her attorney, asserting a number of defenses including but not limited to: 1) a defective predicate notice; 2) lack of personal jurisdiction; 3) an allegation that Respondent is a rent regulated protected occupant to this interim multiple dwelling (hereinafter "IMD") subject to the Loft Law; and 4) a counterclaim for retaliation and attorney's fees. (NYSCEF Doc. 6).

After multiple appearances before the court, Petitioner filed the extant motion seeking: 1) to strike Respondent's second and third affirmative defenses (personal jurisdiction); 2) to strike Respondent's jury demand; 3) for discovery and deposition(s); and 4) for use and occupancy pendente lite. Respondent, through counsel, cross-moved requesting summary judgment; or alternatively to stay the proceeding pursuant to CPLR §2201, pending an outcome before the New York City Loft Board (hereinafter "Loft Board"); and grant any further relief as the court deems just and proper.

The motions were deemed fully briefed and submitted on October 15, 2025.

Motion to Strike Affirmative Defenses

The court will first address the branch of Petitioner's motion requesting Respondent's second and third affirmative defenses be stricken. Both affirmative defenses allege that the court lacks personal jurisdiction over Respondent insofar as the person described in Petitioner's affidavit of service does not fit the description of anyone living in the subject premises, much less Respondent. The gravamen of Petitioner's argument is that despite Respondent proffering facts to dispute the affidavit of service, Respondent has effectively waived any claim attacking personal jurisdiction given that they have interposed an unrelated counterclaim.

As a threshold matter, the interposition of a counterclaim in Respondent's answer will render a defense of personal jurisdiction void if the counterclaim is not "related" to Petitioner's claim. (Textile Technology Exch., Inc. v Davis, 81 NY2d 56, 59 [1993]); Friedman v Eisner, 23 Misc 3d 136[A] [App Term 2nd Dept 2009]). For these purposes, a counterclaim is only "related" to Petitioner's claim if Respondent's failure to assert it would collaterally estop Respondent from raising the counterclaim in a later forum. (Davis, 81 NY2d at 59; Friedman, , 23 Misc 3d at 136[A]). Here, Respondent asserts a counterclaim for retaliatory eviction, which [*2]this court can only assume is a claim pursuant to RPL §223-B (4) and (5). That statute explicitly states that retaliatory eviction "shall be asserted as an affirmative defense." (RPL §223-B [4]). Be that as it may, if it were to be a counterclaim, the language of the statute provides that a:

[J]udgment shall be entered for the tenant if the court finds that the landlord is acting in retaliation for any action set forth in paragraphs a, b, and c of subdivision one of this section. . . .[t]he tenant shall not be relieved of the obligation to pay any rent for which he is otherwise liable. (Id.).

Subsection five of the statute also uses the word "tenant", which leads the court to conclude that the preclusive nature of the statute only applies to certain occupants. (RPL §223-B [5]) (emphasis added). Here, although Respondent alleges that she is a protected occupant under the Loft Law, it is undisputed that Respondent is not the commercial tenant of the subject premises until she is able to succeed as such. Therefore, the intended counterclaim meant for tenants is unrelated to Petitioner's claim. (emphasis added).

Further, Respondent also asserts a counterclaim for attorney's fees. Respondent specifically states in their second counterclaim that they seek "reimbursement for the cost for the defense of this proceeding, together with punitive and exemplary damages in the amount to be determined by the court." (NYSCEF Doc. 6 at ¶59). Recovery of attorney's fees in a summary proceeding is governed by RPL §234. The statute permits the recovery of attorney's fees by a tenant either by counterclaim or through " an action commenced against the landlord." (RPL §234). Given Respondent's statutory right to commence a plenary action for the recovery of attorney's fees, "the claim is not one that could be barred by collateral estoppel and is therefore an unrelated counterclaim." (Dicamillo v Acevedo, 67 Misc 3d 1202[A], 2019 NY Slip Op 52170[U], *9 [Civ Ct Kings County 2019]).

Accordingly, Respondent has affirmatively waived their personal jurisdiction defense.

Jury Demand

As for Respondent's jury demand, New York City Civil Court Act §1303(a) provides that a tenant in a summary proceeding may demand a jury at the time of answering. Here, there is no issue with the timing of Respondent's jury demand. Petitioner, however, avers that any such right has been waived given the terms of the underlying lease. (NYSCEF Doc. 10 at ¶15).

The right to a trial by jury is an important one, and while a party may waive such a right, the extent of the waiver is one of intention to be determined in the light of all the circumstances. (Klipack v Raymar Novelties, Inc., 273 AD 54, 57 [1st Dept 1947]). It is important, therefore, to refer to the language of the agreement purporting to constitute such a waiver. (Groeger v Mifles Realty Corp., 17 Misc 2d 334, 335 [Sup Ct Kings County 1959]). Petitioner attaches the lease between them and the prior tenant of record, as exhibit B (NYSCEF Doc. 13) to their motion. Undoubtedly, item 23 on page 4 of the exhibit states, "it is mutually agreed between Landlord and Tenant that the respective parties hereto shall and hereby do waive trial by jury in any motion, proceeding or counterclaim brought by either of the parties." (NYSCEF Doc. 13 at ¶23). The provision also provides that the waiver applies to any matters "arising out of or in any way connected with the lease, the Tenant's use and occupancy of said premises, and/or any claim of injury or damage." (NYSCEF Doc. 13 at ¶23).

While Respondent argues they are "not a signatory to any lease with a jury waiver" (NYSCEF Doc. 19 at ¶ 22), this has no bearing on the effect of said provision. Successor [*3]occupants are bound by the jury waiver clause in a lease despite not being party thereto. (P & J Hous. Partners, LLC v Alvarado, 34 Misc 3d 130[A] [App Term, 1st Dept, 2011]); see also Alden Raleigh Estates v King, 2003 NY Slip Op 51160[U] [App Term, 2d Dept 2003). This proposition of law relies on the premise that a jury waiver provision is a real covenant running with the land. It is well established that there are two types of covenants involving real property. The first being real covenants which run with the land, and the second being personal covenants. (Neponsit Property Owners' Ass'n v Emigrant Industrial Sav. Bank, 15 N.E.2d 793 [1938]; Arroyo v Rosenbluth, 115 Misc 2d 655, 660 [Civ Ct, Kings County 1982]). Real covenants bind the covenantor, and any and all subsequent grantees as well. (Arroyo, 115 Misc 2d at 660). Personal covenants generally bind only the covenantor. (Neponsit Prop. Owners' Assn.,15 N.E.2d at 795]).

As the court cannot afford more rights to Respondent than it would to the prior tenant of record by way of a jury trial, the court finds that Respondent waived this right.

Discovery

Discovery in summary proceedings is available only by leave of court upon a showing of "ample need." (Mautner-Glick Corp. v Higgins, 64 Misc 3d 16, 18, [App Term, 1st Dept 2019]; CPLR §408). Among the factors a court is to consider in determining whether a party in a summary proceeding obtains discovery are: whether the party has established facts to state a cause of action; whether there is a need to determine information directly related to the cause of action; whether the request is carefully tailored and is likely to clarify the disputed facts; whether prejudice will result from the granting of an application for disclosure; and whether the prejudice can be alleviated by a court order. (Matter of Georgetown Unsold Shares, LLC v Ledet, 130 AD3d 99, 106 [2nd Dept, 2015]; New York University v Farkas, 121 Misc 2d 643, 647 [Civ Ct, NY County 1983]).

A trial court has broad discretion to grant or deny disclosure requests and must balance the needs of the party seeking discovery against such opposing interests as expedition and confidentiality. (Chinatown Preserv. HDFC v Yu Hua Chen, 27 Misc 3d 1213[A] [Civ Ct, NY County 2010), citing Town of Pleasant Valley v New York State Bd. of Real Property Services, 253 AD2d 8, 16 [2nd Dept, 1999]).

Here, Petitioner seeks discovery on Respondent's affirmative defense to succeed as the tenant of record to the subject premises, which they argue triggers a presumption of discovery. The court agrees. Courts have held that disclosure for a landlord is favored where a respondent raises a succession defense. (Lemle v Bascourt, NYLJ, June 15, 2001 at 20, col1 [App Term, 1st Dept 2001]; Quality & Ruskin Assocs. v London, NYLJ, April 29, 2005 at 34, col 4 [App Term, 2d Dept, 2nd & 11th Jud Dists 2005.]; Hughes v Lenox Hill Hosp., 226 AD2d 4, 18 [1st Dept 1996]), leave to appeal denied, 90 NY2d 829, 830 [1997]; 542 E. 14th St. LLC v Lee, 66 AD3d 18, 23 [1st Dept 2009]).

As the court has no duty to prune overbroad requests, (Lerner v 300 W. 17th St. Hous. Dev. Fund Corp., 232 AD2d 249, 250 [1st Dept 1996]; Neighborhood Partnership Hous. Dev. Fund Corp. v Okolie, 2003 NY Misc. LEXIS 341, 2003 NY Slip Op 50707[U] [App Term 2nd Dept 2003]), Respondent shall comply with the notice to produce (NYSCEF Doc. 14) in its entirety, without prejudice to defenses proffered in a "Jackson" affidavit. (Jackson v City of New York, 185 AD2d 768, [1st Dept 1992]).

Use and Occupancy

Prior to the enactment of the New York Housing Stability and Tenant Protection Act of 2019 ("HSTPA"), RPAPL §745(2)(a) provided the basis for assessing a request for use and occupancy. §745 still dictates the basis for use and occupancy, however, the HSTPA has significantly changed the framework in that a petitioner may only make such a motion in writing, at the earliest, on the sixtieth day after the case has appeared, less an initial adjournment sought for purposes of obtaining counsel. The only days that may be counted are adjournments at the sole request of a respondent. The court now may, upon a consideration of the equities, "direct that the respondent, upon a motion on notice made by the petitioner, deposit with the court sums of rent and use and occupancy that shall accrue subsequent to the date of the court's order." (RPAPL §745[2[[a] as amended).

Respondent argues that given the lack of a residential certificate of occupancy and compliance with the Loft Law, use and occupancy should be denied. (NYSCEF Doc. 19 at ¶36). The court disagrees.

New York's Multiple Dwelling Law (hereinafter "MDL") §302(1)(b) provides that where a dwelling is occupied residentially without a conforming certificate of occupancy, "[n]o rent shall be recovered by the owner of such premises . . . and no action or special proceeding shall be maintained therefor, or for possession of said premises for nonpayment of such rent." Pursuant to the Loft Law, there are series of deadlines by which IMDs are required to conform to safety and fire protection standards, ultimately doing everything necessary to obtain a residential certificate of occupancy. (See MDL §284[1]). However, an owner unable to meet the deadlines is entitled to an extension of time if that owner demonstrates to the Loft Board that it has made good faith efforts to comply. (see MDL §284 [1] [vii]). This leads the court to conclude that even if a Loft Law unit does not yet have a residential certificate of occupancy, a Loft Law landlord may still collect rent if it is in compliance with the law. (MDL §285[1]).

The court however does disagree with Petitioner that MDL §302 only applies to rent. (emphasis added). Caselaw has found that MDL §302's prohibition against collection of rent in the absence of a conforming certificate of occupancy includes awards for "use and occupancy". (see Malden v Wykoff S.F., LLC, 192 AD3d 1002 [2d Dept 2021]; Caldwell v American Package Co., Inc., 57 AD3d 15, [2d Dept 2008]). Despite this, Respondent still provides no concrete evidence as to how Petitioner has failed to comply with the timetables set forth by MDL §284. Petitioner, on the other hand, has provided a copious amount of information on work related to the building's asbestos abatement, electrical system, HVAC system, fire protection system, life safety system, and plumbing. Notably, Petitioner represents that the building "remains in compliance with the loft law and continues to rehab the premises in an effort to obtain a residential C of O." (NYCSEF Doc. 28 at ¶16). Nothing Respondent has proffered persuades the court to conclude otherwise.

Here, Petitioner requests this court set the use and occupancy at $2,446.50 per month. (NYSCEF Doc. 20 at ¶40). Given that this proceeding has had at least seven court appearances, this branch of Petitioner's argument is granted. (NYSCEF Doc. 30 & 32).

Cross Motion for Summary Judgment

It is unclear to the court the grounds for which Respondent seeks summary judgment. The court instead agrees with Petitioner in that "[n]o where in the 4 corners of the Notice of Motion or Affirmations does Respondent articulate the basis of their motion." (NYSCEF Doc. 28, at ¶20). Accordingly, this branch of Respondent's motion is denied.

Cross Motion for a Stay

Petitioner presents a colorable argument that a stay can be a drastic remedy on the simple basis that justice delayed is justice denied. (660 Riverside Drive Aldo Assocs. LLC v Marte, 178 Misc 2d 784, 786 [Civ Ct, NY County 1998]). Here, Respondent argues that "the case should be marked off calendar or otherwise stay[ed]. . . pending the legalization and other proceedings pending before the Loft Board." (NYSCEF Doc. 18). The court again disagrees.

Respondent alludes to pending litigation before the Loft Board but fails to proffer any evidence of the same. In attempting to litigate claims of succession as a "Protected Occupant" (hereinafter "PO") before the Loft Board, one would have to file an application pursuant to 29 RCNY §2-08(s)(2), which would require a showing of co-residency for no less than two years prior to prior tenant's passing; or a showing of co-residency since the inception of the occupancy; or a showing of co-residency from the commencement of the relationship. (29 RCNY § 2-08.1(c)(1); Matter of Mignola, Loft Board Order No. 4509 [Apr. 21, 2016]).

If such an application for PO was filed, Respondent may have a colorable argument for a stay. The reason being: under the doctrine of primary jurisdiction, when a tenant seeks a stay pending Loft Board adjudication of coverage and/or protected occupancy, Housing Court often stays the proceeding and defers to the Loft Board. (See In re Jo-Fra Props., Inc., 27 AD3d 298 [1st Dept 2006]; EPDI Assoc. v Conley, 7 AD3d 755 [2d Dept 2004]; Eli Haddad Corp. v Cal Redmond Studio, 102 AD2d 730 [1st Dept 1984]; Matter of Neumann v Wyandanch Union Free School Dist., 84 AD3d 816, 818 [1st Dept 2011]) (emphasis added). However, Respondent has annexed nothing to conclude that the parties are litigating this issue before the Loft Board. This leads the court to conclude that the parties have chosen their venue, and in fact, engaged in extensive litigation before this court to answer the following question: Is Respondent a licensee?

Ultimately, where the decision in one proceeding will determine all the questions in another proceeding and the judgment on one trial will dispose of the controversy in both, a stay is appropriate. (SSA Holdings LLC v Kaplan, 120 AD3d 1111, 1111-1112, [1st Dept 2014]; Ft. Greene Assets Inc. v Delaine, NYLJ March 27, 1995 at 30,col 3 [App Term, 2d Dept, 2nd & 11th Jud Dists 1995] [while the Housing Court has jurisdiction to entertain a rent overcharge claim, the Housing Court will not do so if there is a pending overcharge complaint at the New York State Division of Housing and Community Renewal.]) Here, the court finds that the elements to trigger a stay are not present.

Accordingly, it is

ORDERED that Petitioner's motion is granted in its entirety; it is further

ORDERED that Respondent shall: 1) produce all documents in the Proposed Demand, Petitioner's exhibit C, (NYSCEF Doc. 14), within 45 days of notice of entry on this decision; and 2) sit for an examination before trial within 30 days of notice of entry on this decision; and it is further

ORDERED that Respondent's second and third affirmative defenses are hereby stricken pursuant to CPLR §3211(b); it is further

ORDERED that pursuant to RPAPL §745, Respondent shall pay monthly use and occupancy, in the amount of $2,446.50, commencing January 2, 2026, and thereafter payable on the 1st of each month, pendente lite; it is further

ORDERED that Respondent's cross motion is denied in its entirety; it is further

ORDERED that the parties shall appear on February 18, 2026, at 9:30am to provide the court an update on discovery.

This constitutes the decision and order of the Court.