Recitation, as required by CPLR § 2219(a), of the papers considered in the review of petitioner's motion to strike respondents' affirmative defenses and counterclaims (seq. 1) and respondents' (cross) motion to amend the answer (seq. 2):

[*2]PROCEDURAL HISTORY

This summary nonpayment proceeding was commenced in January 2025. Respondents Alexander Lobard III and Teri Lombard ("respondents") interposed a pro se answer with counterclaims in February 2025. In September 2025, petitioner made a motion to strike respondents' affirmative defenses and counterclaims. After respondents opposed the motion, they made a cross motion to amend the answer. The court heard argument on both motions on January 7, 2026.

DISCUSSION

I. Petitioner's Motion to Strike Affirmative Defenses and Counterclaims

The court will first assess petitioner's motion to strike, as the proposed amendment of the answer supplements the original answer but does not modify the underlying defenses and counterclaims. Respondents oppose the motion in all respects. Pursuant to 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." On a CPLR § 3211(b) motion, "the plaintiff [petitioner] bears the burden of demonstrating that the defenses are without merit as a matter of law . . . [and] the defendant [respondent] is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed[.]" (534 E. 11th St. Hous. Dev. Fund Corp. v Hendrick, 90 AD3d 541, 541-542 [1st Dept 2011]). However, defenses that consist only of "conclusions of law without any supporting facts" are subject to dismissal (see Fireman's Fund Ins. Co. v. Farrell, 57 AD3d 721, 723 [2d Dept 2008]).

Petitioner seeks dismissal of respondents' four affirmative defenses. The first defense combines a challenge to service of the 14-day rent demand and a challenge to service of the pleadings. Only service of the pleadings invokes personal jurisdiction (see 170 West 85 Street Tenants Assn. v Cruz, 173 AD2d 338, 339 [1st Dept 1991] ["The failure of a petitioner to comply with a statutory notice requirement, where applicable, represents merely the failure to comply with a condition precedent to suit and cannot properly be said to affect the court's jurisdiction."]). Petitioner argues that respondents have not provided sufficient factual support for the defense to proceed. The court first assesses the challenge to the service of the pleadings, as it is a threshold issue (see 342 E. 67 Realty LLC v Jacobs, 106 AD3d 610, 611 [1st Dept 2013]; Elm Mgt. Corp. v Sprung, 33 AD3d 753, 755 [2d Dept 2006]). Respondents claim that service was improper because it occurred at a time when petitioner was undertaking repairs in the subject apartment, and they characterize service at this time as harassment, intimidation, and "procedural abuse." (see Answer [NYSCEF Doc. 5]). Respondents also claim that petitioner did not provide proof of affixing and service of the pleadings by first-class mail.

A valid affidavit of service creates a presumption of proper service and a viable challenge to service requires a "sworn nonconclusory denial" to warrant a traverse hearing (NYCTL 1998-1 Trust & Bank of NY v Rabinowitz, 7 AD3d 459, 460 [1st Dept 2004]). Here, petitioner filed an affidavit of substitute service to NYSCEF on January 17, 2025. Contrary to respondents' claims, petitioner has satisfied its lawful obligation regarding the proof of service by filing it with the court within 3 days of mailing (see RPAPL § 735(2)(b); Riverside Syndicate, [*3]Inc. v Saltzman, 49 AD3d 402 [1st Dept 2008]). Moreover, the court does not find the fact that petitioner effectuated service at a time when repairs were scheduled to invalidate otherwise proper service. This is not a situation where the attempt was "predestined to failure." (See Fang Realty Corp. v Prime Six, Inc., 77 129[A], 2022 NY Slip Op 51214[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; 161 Williams Assocs. v Coffee, 122 Misc 3d 37, 39 [Civ Ct, NY County 1983]). Accordingly, petitioner has established that respondents' challenge to service of the pleadings is devoid of merit and the personal jurisdiction portion of the first affirmative defense is dismissed as a result.

As for the challenge to the service of the rent demand, however, the court finds that the defense is not devoid of merit as pleaded. The defense states that respondents were at home during the service attempt on December 16, 2024, but no one knocked on the door or attempted to serve respondents. Respondents also state that the 14-day notice was left between the doorknob and the door opening, rather than affixed to the door. Taken together, these specific denials of service of the predicate notice are sufficient to survive dismissal on a CPLR § 3211 motion (see 309 W. 109th St. Corp. v Davidson, 87 Misc 3d 136[A], 2025 NY Slip Op 52025[U] [App Term, 1st Dept 2025]; 1711 Boone Ave. LLC v Alhudais, 84 Misc 3d 127[A], 2024 NY Slip Op 51449[U] [App Term, 1st Dept 2024]).

Respondents' second affirmative defense is titled, "failure to state a claim/invalid rent demand." The defense disputes claimed rent arrears for October and November 2023 because the relevant lease did not commence until December 1, 2023. The defense also challenges the monthly rent amount of $1300.89 alleged to be due in one of the months in the petition. Petitioner asserts in its motion that the $1,300.89 charge reflects MCI (Major Capital Improvement) charges permitted by order of the state Division of Housing and Community Renewal (DHCR). Generally, a defense of failure to state a cause of action is not subject to dismissal on a CPLR § 3211 motion and is considered "harmless surplusage." (Butler v Catinella, 58 AD3d 145, 150 [2d Dept 2008]; see also Citibank [S.D.] N.A. v Coughlin, 274 AD2d 658, 660 [3d Dept 2000]; Riland v Federick S. Todman & Co., 56 AD2d 350, 353 [1st Dept 1977]). Here, the court finds that the second affirmative defense is effectively a failure to state a cause of action challenge and should not be dismissed at this juncture, particularly since the petition separately seeks MCI charges and there is no apparent indication that the $1,300.89 monthly rent for January 2025 is inclusive of an MCI charge.

Respondents' third affirmative defense claims that petitioner violated a stipulation in a prior proceeding between the parties, Index No. L&T 324962/23, in frustrating respondents' ability to make payments under the stipulation by blocking ClickPay access. Petitioner disputes that it prohibited respondents from tendering any payment and argues that respondents' recourse is by seeking relief in the prior proceeding. Inasmuch as respondents claim that petitioner breached a stipulation in a prior proceeding, petitioner is correct that their recourse is to seek any relevant relief in that proceeding (see 254 Park South LLC v Sgroi, 82 Misc 3d 131[A], 2024 NY Slip Op 50418[U] [App Term, 1st Dept 2024]). Moreover, while Real Property Law (RPL) § 235-e requires a landlord to provide a written receipt upon payment of rent, there is no affirmative obligation that a landlord provide access to an electronic payment portal. Accordingly, the court finds that respondents' third affirmative defense to be devoid of merit; it is dismissed as a result. However, respondents retain their right to move for any appropriate relief in Index No. L&T 324962/23.

Respondents' fourth affirmative defense claims retaliatory eviction. Petitioner argues [*4]that none of the facts alleged in the defense dispute petitioner's underlying nonpayment of rent claim. In construing respondents' allegations in a light most favorable to them (see Sonfer Family LLC v Sprague, 80 Misc 3d 130[A], 2023 NY Slip Op 51018[U] [App Term, 1st Dept 2023]), the court finds that respondents have adequately made out a claim for retaliatory eviction under RPL § 223-b in relation to their alleged actions to enforce provisions of the lease (see RPL § 223-b(1)(b)). Ultimately, however, respondents will have the burden of proof on their defense (see Knoll Manor Assoc. of NY v Goldstein, 73 Misc 3d 138[A], 2021 NY Slip Op 51158[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]).

Petitioner also seeks dismissal of respondents' original seven counterclaims. Respondents' first counterclaim re-pleads the "breach" of the stipulation in Index No. L&T 324962/23. As the court has previously found the defense based on the same facts to lack merit, at least as interposed in this proceeding, the counterclaim is dismissed without prejudice. Respondents' second counterclaim is for retaliatory eviction. As pleaded as a counterclaim, absent any prayer for affirmative relief, the court finds that it is duplicative. Accordingly, it is dismissed without prejudice.

Respondents' third counterclaim alleges "false misrepresentation and lease manipulation." The answer does not state what relief respondents seek in relation to the counterclaim. As the allegations therein were substantially referenced in the retaliation defense, the court finds the third counterclaim to be similarly duplicative. The counterclaim is dismissed without prejudice. Respondents' fourth counterclaim alleges harassment under the Housing Maintenance Code. On this motion to dismiss, the court finds that in construing the answer in the light most favorable to respondents, they have articulated a claim for harassment under NYC Admin. Code §§ 27-2004(a)(48)(a-1) and 27-2004(a)(48)(g) (see Berg v Chelsea Hotel Owner, LLC, 203 AD3d 484 [1st Dept 2022]). Respondents' fifth counterclaim alleges a breach of the warranty of habitability. Though petitioner asserts that the claim insufficiently details respondents' efforts to give petitioner notice of the alleged conditions in the subject premises, the court finds that the counterclaim is adequately pleaded at this juncture and will not be subject to dismissal (see Park West Management Corp. v Mitchell, 47 NY2d 316, 325 [1979]; 885 W.E. Residents Corp. v Tally, 11 Misc 3d 141[A], 2006 NY Slip Op 50685[U] [App Term, 1st Dept 2006]).

Respondents' sixth counterclaim seek reimbursement for medical expenses and the seventh counterclaim alleges intentional infliction of emotional distress (IIED). As the court does not find that it has jurisdiction over either of these matters, both counterclaims are dismissed without prejudice to their interposition in a court of general jurisdiction (see Wheeler v Linden Plaza Preserv. LP, 172 AD3d 608, 609 [1st Dept 2019]) ["The New York City Civil Court Act and article 7 of the RPAPL provide the housing court with limited jurisdiction in summary proceedings, that is: recovery of possession of real property under various circumstances, and actions for the collection of rent."] [Internal citations omitted]; Rostant v Swersky, 79 AD3d 456, 457 [1st Dept 2010] [Purely monetary damages "must be sought in a court of competent jurisdiction.").

For each of these reasons, petitioner's motion is granted to the extent that the following affirmative defenses are dismissed: the first, to the extent that it challenges service of the notice of petition and petition, and the third. The third affirmative defense is dismissed without prejudice. The court also dismisses respondents' first, second, third, sixth, and seventh counterclaims, all without prejudice. The motion is otherwise denied.

II. Cross Motion to Amend the Answer

Respondents seek amendment of their answer to add two affirmative defenses and a counterclaim. Petitioner opposes the motion in its entirety. Motions for leave to amend "should be freely granted (CPLR 3025(b)) absent prejudice or surprise resulting from the proposed amendment, unless the proposed amendment is palpably insufficient or patently devoid of merit." (Badesch v Fort 710 Assoc., L.P. 233 AD3d 604, 604 [1st Dept 2024]). Although not artfully pleaded, the court considers respondents' proposed fifth affirmative defense and first (eighth in sequence) counterclaim to allege rent overcharge. The sixth proposed affirmative defense challenges the legality of the rent in the rent demand. Respondents claim that the legal rent for the apartment was improperly set pursuant to a 2006 "West Side Marquis Rent Adjustment Dispute Settlement Agreement" (hereinafter "2006 Agreement"), notwithstanding the fact that neither respondents nor the former tenants, their grandparents, were parties to the Agreement. Respondents also highlight Judge Alberto M. Gonzalez's Decision/Order dated October 16, 2024 in Index No. L&T 324962/23, which included a specific holding that respondents are not subject to the 2006 Agreement (see NYSCEF Doc. 12).

Upon due consideration, the court finds that respondents' additional affirmative defenses and counterclaim are not devoid of merit. The DHCR rent history annexed by respondents shows that the legal rent increased substantially between 2006 and 2007, notwithstanding the fact that the prior tenants, Alexander Lombard and Catherine Lombard, were in possession at the time that the increase was taken, thereby suggesting that petitioner improperly increased the rent pursuant to the 2006 Agreement.^[FN1] The court notes, however, that to prevail on a rent overcharge claim, respondents will be obligated to prove a "fraudulent scheme to evade the protection of the rent stabilization laws" (Burrows v 75-25 153rd St., LLC, 44 NY3d 74, 84 [2025]) that would allow the court to review the rental history beyond the 4-year base date (see Cox v 36 S Oxford St, LLC, 237 AD3d 604, 605 [1st Dept 2025] [Discussing 2023 and 2024 amendments to the Rent Stabilization Law and Rent Stabilization Code, which require a consideration of the "totality of the circumstances" in determining if fraud has occurred.]; 167 8th Ave. LLC v Goldstein, 2025 NY Slip Op 25260, *1-2 [App Term, 1st Dept]). Additionally, to the extent that any injunctive relief is sought via the counterclaim, the court will not entertain such relief herein (see North Waterside Redevelopment Co., L.P. v Febbraro, 256 AD2d 261, 262 [1st Dept 1998]; Broome Realty Assoc. v Sek Wing Eng, 182 Misc 2d 917, 918 [App Term, 1st Dept 1999]).

Accordingly, respondents' cross motion to amend the answer is granted and the proposed amendments are deemed served and filed. However, the court deems the proposed "first" counterclaim ("Rent Overcharge, Default Formula, and Correction of Rent History") to be the eighth counterclaim for the sake of continuity. The determinations on respondents' cross motion do not affect the court's determinations above as to petitioner's motion to strike.

CONCLUSION

The parties' respective motions are disposed to the foregoing extent. The proceeding will be restored for all purposes, including trial transfer, in Part D on April 14, 2026 at 9:30 AM. [*5]This Decision/Order will be filed to NYSCEF and emailed to respondents.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.