Friday, December 9, 2016

WHAT KIND OF COUNTERCLAIMS CAN A TENANT ASSERT IN A HOLDOVER PROCEEDING



537 Greenwich LLC v Chista, Inc., 19 Misc 3d 1133(A) (2008 - Civil Court Of The City Of New York, New York County):

”CPLR § 407 authorizes a court at any time to sever a counterclaim in a special or summary proceeding to continue as a plenary action. Where a tenant's counterclaim in a holdover proceeding is not inextricably intertwined with the landlord's main claim for possession, it should be severed from the summary proceeding as it may inordinately delay the summary nature of the special proceeding. Sutton Fifty-Six Co. v Fridecky, 93 AD2d 720 (1st Dept 1983). "Where the counterclaim has nothing whatsoever to do with the issue of whether the landlord is entitled to possession of his property, the counterclaim ought not be considered. Under such circumstances, the court should sever the counterclaim from the proceeding. Summary proceedings are special proceedings and under CPLR 407, the court may at any time order a severance." 3 Rasch, New York Landlord and Tenant §43:43 (4th ed. 1992)....In this case, this Court exercises its discretion to sever respondent's ....Counterclaims as they are not inextricably intertwined with petitioner's main claim for possession and would inordinately delay this summary proceeding.”

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