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Re: Defenses, Counterclaims & PartX

Posted by DK on February 15, 1999 at 16:46:38:

In Reply to: Defenses, Counterclaims & PartX posted by CarmenRamon on February 12, 1999 at 07:37:54:

You have asked about fundamental rules of pleading. Understanding the rules of pleading are essential for understanding how our legal system works.

A lawsuit begins with a "complaint" or a "petition" where the person bringing the lawsuit tells the court and the defendant (or respondent) what "claim" is being made.

A "claim" is the statement of the facts which forms the basis for the relief which is being sought from the court. For example, your landlord is suing you for a determination that you have failed to pay rent due and, should you fail to pay the rent after the determination of the court, that you be evicted.

The defendant or respondent "answers" the complaint or petition by alleging facts that fall into four categories: denial, affirmative defense, counterclaim and demurrer.

A "denial" is a statement that an essential fact in the petition or complaint is untrue. This is sometimes called a "defense." For example, if the landlord claims that you have not paid the rent and you deny that this is true, you have a defense if the evidence should show that no rent is owed.

An "affirmative defense" is a statement of an additional fact which, if proven by the defendant, would affect the outcome on the claim. Breach of warranty of habitability is an affirmative defense to a claim for unpaid rent. You may owe the rent, which would ordinarily be sufficient to establish the landlord's claim, but if you prove the additional fact that required services were not provided, then you have established your affirmative defense and a portion of the rent claim would be abated depending on the value of the service not provided.

A "counterclaim" is a defendant's own claim against the plaintiff or petitioner. In order to win a counterclaim, you must show that you had a claim which could stand on its own if you were the plaintiff or petitioner.

A "demurrer" is the statement of a defendant or respondent that, even if everything stated in the complaint or petition were true, it would still not constitute a valid claim or cause of action. For example, if the landlord's petition failed to include a statement that he had properly registered a managing agent, the case would have to be dismissed because New York law says that proof of registration is an essential part of a claim to collect rent. A demurrer can be contained in an answer, or it can be raised separately in a motion to dismiss.

The rub in your case is that breach of warranty of habitability can be both an affirmative defense and a counterclaim at the same time. It is affirmative defense for the period when the rent is unpaid. If you already paid the rent, but now you want it back because you did not receive required services, that would be a counterclaim (or a claim if you were suing separately, for example, in small claims court).

It is well established that a tenant may raise breach of the warranty of habitability as both an affirmative defense and a counterclaim in a summary proceeding which seeks eviction for non-payment of rent. You are entitled to go back six years, which is the statute of limitations for that type of claim.

You can still assert your counterclaim by making a motion to amend your answer to include the counterclaim. Case rulings which support this rule are Park West Mgmt v. Mitchell, 47 NY2d 316, 418 NYS2d 310 (NY Court of Appeals 1979); Liant Record Co. v. Kerner, NYLJ 3/29/91 27:6 (Civil Ct., Kings Co.); Cosmopolitan Assoc. v. Ortega, 90 Misc.2d 437, 395 NYS2d 358 (Civil Ct., Queens Co. 1977). The appeals courts have made it clear that tenants may recover on counterclaims based on breach of warranty of habitability for periods of time in excess of the time for which the petitioner is suing for rent. Sanchez v. Badami, NYLJ 7/8/91, 24:6 (Appellate Term, 9th & 10th Dists.; 350 Assocs. v. Feldman, NYLJ 12/18/78, 13:6 (App. Term, 1st Dep't).

If you don't know how to make a motion, you should see the pro se clerk to ask him or her to help you fill out the papers.

: Background:
: We're NYC rent-stabilized. After trying to get the landlord to fix a few things, we gave up & started to pay only part of the rent. Landlord sued. We answered pro se (don't qualify for any free legal service but can't afford an attorney either). The clerk added "warranty of habitality" to the pre-printed form but would not write "counterclaims": he said we needed to give him an exact dollar amount. We've read about "affirmative defenses" and "counterclaims" here, in the info available at court and elsewhere and tried to, but couldn't, see the pro se atty but never understood the difference.
: In Resolution Part, their attorney & the judge both would only discuss the reduced/lack of services (biggies= heat, building door lock) from the date we paid less than the full rent. They also both suggested the claimed Rent Overcharge should be handled by DCHR.
: So we got sent to PartX and have to go back in March.

: The Question:
: It seems like the rent abatement & refund for the months that we paid the full rent (and the overcharges for the same period) is only a counterclaim which would explain why they would not discuss those months. Is this true? Can someone explain or point us to a good written explanation on the web or in the library? Thank you.

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