Judge Kimon C. Thermos

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Landlord sought possession of the rent stabilized apartment alleging tenant violated a substantial obligation of his lease by a chronic pattern of late or nonpayment of rent in this summary holdover action. The notice to cure alleged four nonpayment proceedings against tenant were commenced by landlord, resulting in an entry of judgment in its favor, and issuance of a warrant of eviction, and a continuing default over a 25 month period in which rent was late monthly. Tenant moved for dismissal claiming the petition failed to state a cause of action since a warranty of habitability defense was raised in each prior case used as grounds for this proceeding. He relied on the six year statute of limitations to argue the oldest of the four proceedings could not comprise grounds for this claim. The court noted the six year limitations period did not provide a look back period or cutoff date, it did not define when the claim accrued. It stated the prior cases resulting in judgments in landlord’s favor, coupled with allegations of defaults outside the pendency of these actions constituted prima facie case for a chronic nonpayment holdover. Thus, as the failure to pay rent was not a withholding based on the warranty defense, but an inability to pay, dismissal was unwarranted.

Judge Kimon C. Thermos

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Landlord sought possession of the rent stabilized apartment alleging tenant violated a substantial obligation of his lease by a chronic pattern of late or nonpayment of rent in this summary holdover action. The notice to cure alleged four nonpayment proceedings against tenant were commenced by landlord, resulting in an entry of judgment in its favor, and issuance of a warrant of eviction, and a continuing default over a 25 month period in which rent was late monthly. Tenant moved for dismissal claiming the petition failed to state a cause of action since a warranty of habitability defense was raised in each prior case used as grounds for this proceeding. He relied on the six year statute of limitations to argue the oldest of the four proceedings could not comprise grounds for this claim. The court noted the six year limitations period did not provide a look back period or cutoff date, it did not define when the claim accrued. It stated the prior cases resulting in judgments in landlord’s favor, coupled with allegations of defaults outside the pendency of these actions constituted prima facie case for a chronic nonpayment holdover. Thus, as the failure to pay rent was not a withholding based on the warranty defense, but an inability to pay, dismissal was unwarranted.