Bronx Park E. Hous. Co. Inc. v Lazri

Civil Court of the City of New York, Bronx County

Decided on April 17, 2026

Index No. CV-002797-25/BX

Dawn Guglielmo, J.

Recitation, as required by CPLR 2219 (a), of the papers considered in review of this motion for summary judgment and striking defendant's answer (Motion Seq. No. 1):

Sequence No. 1 Doc. Nos.

Notice of Motion, and Affirmation in Support and Exhibits 1

Affirmation in Opposition 2

Reply and Exhibits 3

Upon the foregoing cited papers and due deliberation, the motion of plaintiff, BRONX PARK EAST HOUSING CO. INC (hereinafter "plaintiff"), seeking an order, pursuant to CPLR 3212, granting plaintiff summary judgment; and an order, pursuant to CPLR 3211 (b), striking defendant's answer and dismissing defendant's general denial and affirmative defense, is hereby denied for the reasons discussed infra.

On or about February 25, 2025, plaintiff commenced the underlying action with the filing of a summons and endorsed complaint seeking recovery of rental arrears from defendant in the amount of $21,600.00 with interest from February 1, 2023; damages in the amount of $8,828.58; and legal fees in the amount of $500.00 plus costs and disbursements. Thereafter, on or about March 14, 2025, defendant filed an oral answer asserting the affirmative defense that he does not owe the debt. On or about November 19, 2025, plaintiff filed the instant motion seeking summary judgment against defendant in the amount of $30,428.58, and an order striking defendant's answer and dismissing defendant's affirmative defense.

Plaintiff makes the instant motion seeking summary judgment on the basis that no material issues of fact exist requiring a trial in the underlying action. In support, plaintiff attaches an affirmation by Tom Vataj (hereinafter "Mr. Vataj"), the managing agent for Bronx Park East Housing Co. Inc, affirming that he is fully familiar with the facts and circumstances of the underlying proceeding and that he has personal knowledge of plaintiff's regular business practices and record keeping practices. Mr. Vataj also affirms that plaintiff is the owner and [*2]landlord of the subject premises; that defendant was a tenant of the subject premises pursuant to a lease agreement executed on or about October 27, 2015; that defendant executed two (2) lease renewal agreements subject to the terms and conditions of the original lease; and that defendant vacated the subject premises on April 30, 2024. Plaintiff also asserts that defendant was obligated to pay monthly surcharges totaling $225.00 per month for three electrical items in the apartment starting May 2016 through April 30, 2024; as well as a late fee in the amount of $75.00 for each instance where rent was remitted after the tenth day of the month. Additionally, Mr. Vataj affirms that defendant owes plaintiff surcharges and late fees in the amount of $8,828.58; rental arrears of $21,600.00 for defendant's failure to remit rent for the months of February 2023 in the amount of $1402.30; March 2023 through and including October 2023 in the amount of $1,424.38 per month; and November 2023 through and including April 2024 in the amount of $1,467.11 per month.

In support, plaintiff provides a copy of the written lease agreement, dated October 27, 2015 and executed by defendant. The written lease agreement states that plaintiff is the landlord and defendant is a tenant of the subject premises; that the lease is effective for a term of two (2) years commencing November 1, 2015 and ending October 31, 2017, with a monthly rent of $1,300.00 to be paid by the first of each month. The lease also includes a rider agreement which states, in pertinent part, that tenant must pay plaintiff monthly surcharges if tenant places certain appliances in the subject premises, to wit, clothing washers; clothing dryers; heating equipment; and space-heaters at a rate of $75.00 per appliance; as well as air-conditioning units, whether operating or not, for a minimum of one year period from the date of installation, at the rate prescribed by the New York State Division of Housing and Community Renewal.

Plaintiff also provides a document entitled Bronx Park East Tenant Rent History (hereinafter "rent ledger") which lists defendant's name; the address of the subject premises; and an outstanding balance of $32,686.07. The rent ledger also states that defendant made large payments in excess of rent from the months of October 2021 through May 2022, and that the May 2022 payment was the last payment credited to defendant's account. Additionally, the top of the rent ledger states that "there was a discrepancy as to the amount paid prior to 10/1/22 so I decided to start with 621.33."

In further support, plaintiff provides two (2) lease renewal agreements, each stating that the agreement is subject to the terms and conditions of the original lease. The first lease renewal was executed by plaintiff and defendant on October 24, 2022 and states that defendant agrees to lease the subject premises for a term of one (1) year commencing November 1, 2022 and ending October 31, 2023 for a monthly rent of $1,424.38. The second lease renewal was executed by plaintiff and defendant on October 27, 2023 and states that defendant agrees to lease the subject premises for a term of two (2) years commencing November 1, 2023 and ending October 31, 2025 for a monthly rent of $1,467.11.

With respect to the portion of plaintiff's motion seeking to strike defendant's affirmative defense, plaintiff contends that defendant has failed to provide documentary evidence that contradicts the amount of the debt plaintiff asserts is owed by defendant. Plaintiff further states that defendant provided plaintiff's counsel with copies of several checks made payable to [*3]plaintiff; that these checks total $10,516.92; that said checks were properly credited to defendant's accounts; and that defendant still owes rental arrears and damages in the amount of $30,428.58. On this point, plaintiff provides the rent ledger, the contents of which are outlined above.

In opposition, defendant states that he lived at the subject premises for seven (7) years; that during his tenancy he timely remitted rent each month and timely remitted a washing machine fee in the amount of $70.00 each month; that he paid rent in cash for approximately four (4) years; and that he owed no balance at the time he vacated the apartment. Defendant also states that he never owned a dishwasher and that the appliance surcharge reflected on his account is inflated. In support, defendant provides, inter alia, copies of seventeen (17) checks made out to plaintiff and signed by defendant totaling $23,957.67. The checks state, to wit, April 7, 2022 in the amount of $1,720.00; November 7, 2022 in the amount of $1,359.15; December 4, 2022 in the amount of $1,379.54; January 5, 2023 in the amount of $1,359.59; February 6, 2023 in the amount of $1,359.59; March 8, 2023 in the amount of $1,359.59; May 9, 2023 in the amount of $1,499.38; June 6, 2023 in the amount of $1,500.00; June 7, 2023 in the amount of $1,500.00; August 2, 2023 in the amount of $231.83; September 8, 2023 in the amount of $1,532.00; October 8, 2023 in the amount of $1,532.00; November 8, 2023 in the amount of $1,523.00; December 8, 2023 in the amount of $1,523.00; January 8, 2024 in the amount of $1,528.00; February 6, 2024 in the amount of $1,528.00; and March 5, 2024 in the amount of $1,523.00.

In reply, plaintiff states that defendant's opposition is neither dated nor affirmed before a notary, making the opposition improper and lacking probative value. Plaintiff further states that defendant did not pay the monthly washing machine fee of $75.00; that plaintiff has never billed defendant for a dishwasher; that the monthly appliance surcharges were for the use and existence of a washing machine and two (2) heaters on the subject premises; that each item was billed at a rate of $75.00 per month; that defendant's account was credited $10,516.92; and that defendant still owes an outstanding balance of $30,428.58.

Plaintiff's reply also contains a second affirmation by Mr. Vataj, affirming that defendant was never billed for the use of a dishwasher; that defendant was billed for the use of a washing machine and two (2) heaters at a rate of $75.00 per appliance each month; that defendant's account has been credited $10,516.92; and that defendant owes an outstanding balance of $30,428.58 in rental arrears, monthly surcharge fees, and late fees. Additionally, plaintiff provides two (2) photos of a heater in an apartment.

A motion for summary judgment should be supported by an affidavit, a copy of the pleadings and other available proof (CPLR 3212 [b]). "The affidavit should be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit" (CPLR 3212 [b]). The party seeking summary judgment bears the burden of making a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence, in admissible form, to eliminate any material issues of fact in the action (see Winegrad v NY Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Failure to make such showing requires denial of the motion, irrespective of the sufficiency of the opposing papers (Winegrad, 64 NY2d at 853).

Once a movant satisfies their prima facie showing, the burden shifts to the nonmoving party (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The nonmoving party "must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact . . . or must demonstrate [an] acceptable excuse for [the] failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman, 49 NY2d at 562).

To prevail in a cause of action to recover damages for breach of contract, a plaintiff must show the existence of a contract; plaintiff's performance in accordance with the contract; defendant's breach of the contract; and damages resulting from defendant's breach (34-06 73, LLC v Seneca Ins. Co., 39 NY3d 44, 52 [2022]). Where the contract is a lease, and the damage is unpaid rent, "the amount of arrears may be calculated without the need for a hearing" if proven via an affidavit of an "officer who averred to the amount of arrears owed, based on the records maintained by plaintiff . . . . [and] defendant [does] not challenge the amount claimed by plaintiff for arrears or the basis of plaintiff's affiant's knowledge . . . ." (Olympic Galleria, Co., Inc. v Sitt, 241 AD3d 1092, 1094 [1st Dept 2025]).

A showing that a property owner created an impediment to accepting rental payments limits the property owners ability to collect prejudgment interest on rental arrears (see Olympic, 241 AD3d at 1095 [finding that denial of an award of prejudgment interest on rental arrears was appropriate where the record showed that plaintiff rejected defendant's rent payments and did not seek a court order to collect rents without prejudice]).

"A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit" (CPLR 3211 [b]). "On a motion to dismiss affirmative defenses pursuant to CPLR 3211 (b), the plaintiff bears the burden of demonstrating that the defenses are without merit as a matter of law" (534 E. 11th St. Hous. Dev. Fund Corp. v Hendrick, 90 AD3d 541, 542 [1st Dept 2011] [internal citations omitted]). "In deciding a motion to dismiss a defense, the defendant 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. at 542 [internal citation omitted]). "A defense should not be stricken where there are questions of fact requiring trial" (id.).

Here, plaintiff tendered the initial lease, renewal leases, a rent ledger, and an affirmation from the property manager averring to the accuracy of the records but failed to provide any proof that defendant kept two space heaters in the subject premises. In opposition, defendant provided copies of seventeen (17) checks made out to plaintiff totaling $23,957.67, with fourteen (14) of these checks dated after January 1, 2023. However, plaintiff's rent ledger states that the last credit to defendant's account was $3,051.00 in May of 2022. Consequently, the Court finds that material issues of fact exist concerning the amount of debt owed and plaintiff's motion for summary judgment must be denied.

With respect to plaintiff's motion to strike defendant's answer and dismiss his general denial and affirmative defense, plaintiff contends that defendant's affirmative defense lacks merit. Specifically, plaintiff asserts that defendant provides copies of numerous checks totaling [*4]$10,516.92; that said checks are defendant's only proof of payment; that the value of said checks has been credited to defendant's account; that defendant still owes plaintiff an outstanding balance of $30,428.58; and that absent any further proof, defendant lacks a defense with any merit. However, affording defendant's answer a liberal construction, combined with the Court's finding that material issues of fact exist in this action requiring resolution at trial, plaintiff's motion to strike defendant's answer and dismiss defendant's affirmative defense must also be denied.

Accordingly, it is hereby

ORDERED that the motion by plaintiff, BRONX PARK EAST HOUSING CO. INC., seeking an order awarding plaintiff summary judgment pursuant to CPLR 3212; and an order striking defendant's answer and dismissing his general denial and affirmative defense pursuant to CPLR 3211 (b), is hereby denied; And it is further

ORDERED that the parties shall appear for trial on September 17, 2026 at 2:15 p.m. in room 503 of Bronx Civil Court, 851 Grand Concourse Bronx, New York 10451.

This constitutes the Decision and Order of the Court.

Dated: April 17, 2026

Bronx, New York