182 Fifth Avenue, LLC v. Design Development Concepts, Inc.

300 A.D.2d 198, 751 N.Y.S.2d 739, 2002 N.Y. App. Div. LEXIS 12842

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 24, 2002
• Status: Published

Opinion

—Order, Supreme Court, New York County (Leland DeGrasse, J.), entered January 9, 2002, which, to the extent appealed from as limited by the brief, denied plaintiff landlord’s motion to dismiss defendant tenants’ second, third, eighth and ninth affirmative defenses and first and second counterclaims, unanimously affirmed, without costs.

The motion court properly declined to dismiss the subject affirmative defenses and counterclaims pursuant to CPLR 3211 (b), since the allegations of the answer, viewed, as they must be in this procedural context, in the light most favorable to defendants (see Grunder v Recckio, 138 AD2d 923), state cognizable defenses and counterclaims. In this connection, the eligibility of the subject loft units for protection under rent stabilization pursuant to the Emergency Tenant Protection Act of 1974 (L 1974, ch 576, § 4, as amended [ETPA]) is adequately alleged (see McKinney’s Uncons Laws of NY § 8625 [ETPA § 5]; Rent Stabilization Code [9 NYCRR] § 2520.11 [d]; Tan Holding Corp. v Wallace, 187 Misc 2d 687; Mandel v Pitkowsky, 102 Misc 2d 478, affd 76 AD2d 807), notwithstanding the sale of Loft Law rights by a prior tenant. Concur — Tom, J.P., Andrias, Rosenberger, Friedman and Marlow, JJ.