SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
____________________________________
COMES NOW [NAME] (“Defendant”), and hereby files this Response to Plaintiff’s Motion for Summary Judgment requesting that the Plaintiff’s Motion be denied, and the case proceed to hearing. Complainant states as follows:
INTRODUCTION
Defendants are the current tenants of 1924 Bussing Avenue, Bronx, NY. Plaintiff is the Landlord of the said property.
Plaintiff filed a Complaint against Defendants before this honorable court. Accordingly, Defendants responded to Plaintiff’s counterclaim alleging, inter alia, that Plaintiff’s actions caused Defendants emotional distress; Plaintiff enriched himself unjustly; and Plaintiff breached the warranty of habitability (Tenant’s right to privacy).
On or about November 4, 2020, Plaintiff filed the Motion to Dismiss Defendants’ Answer and Summary Judgment (hereinafter “Motion”), and Plaintiff’s Affidavit in Support thereof. In Plaintiff’s Motion, Plaintiff alleges that:
- Defendant’s answer is defective;
- The Court lacks jurisdiction over Defendant’s counterclaim;
- Defendant’s Counterclaim lacks an Affidavit of Support;
- Defendants’ counterclaim fails to state a cause of action;
- Defendants failed to offer documentary evidence;
STANDARD OF REVIEW
C.P.L.R. §3212(b) provides, inter alia, that a motion for summary judgment “shall be denied if any party shall show facts sufficient to require a trial of any issue of fact.”
Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 (1986). The party for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 (1985). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See, Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735, 853 N.Y.S.2d 526, 883 N.E.2d 350 (2008).
The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence. See, Negri v. Stop & Shop, Inc., 65 N.Y.2d 625, 626, 491 N.Y.S.2d 151, 480 N.E.2d 740 (1985).
ARGUMENT
- DEFENDANT’S ANSWER TO PLAINTIFF’S VERIFIED COMPLAINT IS NOT DEFECTIVE
Plaintiff contends that Defendants’ answer to Plaintiff’s Verified Complaint is defective. Contrariwise, Defendant contends that Defendant’s Answer complied with the law and was sufficient response to Plaintiff’s Complaint.
CPLR §3018 formally provides for three options for responding to allegations in a complaint. These are admit, deny, or deny knowledge or information as to the facts set forth in the complaint.
“Denials generally relate to allegations setting forth the essential elements that must be proved in order to sustain the particular cause of action” and “[t]hus a mere denial of one or more elements of the cause of action will suffice to place them in issue” US Bank N.A. v Nelson, 169 AD3d 110, 113.
Besides, according to CPLR §§3011, a defendant in a civil action is also entitled to include in its answer a counterclaim against the plaintiff.
In the instant action, Defendant denied and admitted the allegations in Plaintiff’s Amended Complaint in accordance with the law. And per US Bank N.A, 169 AD3d 110, 113, Defendant’s mere denial sufficiently placed Plaintiff’s allegations at issue. Accordingly, Plaintiff’s claim that Defendant’s Answer is defective is baseless and should be denied.
- THE COURT HAS JURISDICTION OVER DEFENDANT’S COUNTERCLAIM
Defendant alleges that this honorable court lacks jurisdiction over Defendant’s counterclaim. Defendants contend that Defendant’s counterclaim is rightly placed before this court.
The Supreme Court of the state of New York is a court of “general jurisdiction.” Personal jurisdiction over the individual defendant will be based upon either their “presence” in the state of New York (CPLR §301) or their activity, which falls under one of the provisions provided for in New York’s long-arm statute. See CPLR §302. The second part of personal jurisdiction is dependent upon the proper service of the summons and complaint pursuant to CPLR Article 3.
Pursuant to CPLR Article 5, venue is properly placed in the county of residence of any party. See CPLR §503.
In the instant action, Defendant is a resident of Bronx County, New york. Besides, the allegations in Defendant’s counterclaim arose in Bronx County, New York. Accordingly, Defendant’s Counterclaim is rightly placed in the instant Court.
- LACK OF AN AFFIDAVIT OF SUPPORT IS NOT SUFFICIENT GROUND TO GRANT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff avers that Defendant’s Counterclaim should be dismissed because it lacks an Affidavit of Support. Defendant contends that such Plaintiff’s averment does not amount to sufficient ground to grant summary judgment.
Motions for Summary Judgment should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 (1986). Besides, a motion for summary judgment shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. See C.P.L.R. §3212(b).
In light of the foregoing, Defendant’s failure to include an Affidavit in Support of Defendant’s Counterclaim is not ground for this honorable court to grant Plaintiff’s Motion for Summary Judgment. Besides, CPLR 3211 does not list failure to include an Affidavit in Support as one ground to grant a Motion for Summary Judgment.
- DEFENDANTS’ COUNTERCLAIM STATES A VALID CAUSE OF ACTION
Plaintiff alleges that Defendant has failed to state a valid cause of action in Defendant’s counterclaim. Defendant contends that the counterclaim contains valid causes of action.
In a motion to dismiss pursuant to CPLR 3211(a)(7), movant must demonstrate that the complaint, within its four corners, fails to state a cause of action See, Qualified Personal Residence Trust of Doris Rosen Margett, 137 AD3d 965 [2d Dept 2016].
In Defendant’s Counterclaim, Defendant stated three counts namely intentional infliction of emotional distress; unjust enrichment; and breach of warranty of habitability. Defendant went further to state relevant facts how Plaintiff’s actions and/or inactions met the elements of the said causes of action. Accordingly, Plaintiff’s allegation herein should be denied.
- PLAINTIFF’S CLAIM THAT DEFENDANT FAILED TO OFFER DOCUMENTARY EVIDENCE CANNOT JUSTIFY SUMMARY JUDGMENT
Generally, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent’s documents, but must affirmatively demonstrate the merit of its claims or defense. Dalton v. Educational Testing Service, 294 A.D.2d 462, 742 N.Y.S.2d (2d Dept. 2002). The burden is on the movant to produce evidence as would be required in a trial. Oxford Paper Co. v. S.M. Liquidation Co., Inc., 45 Misc.2d 612, 614 (Sup. Ct. N.Y. County 1965). Moreover, in a movant for summary judgment, the movant has a greater burden to produce evidentiary facts than the non-movant. Friends of Animals v. Associated Fur. Mfrs., 46 N.Y.2d 1065, 1068 (1979).
In the instant action, Plaintiff fails to demonstrate the sufficiency of his allegations to support his Motion for Summary Judgment. Instead, Plaintiff focuses his attention on the form of Defendant’s counterclaim. Accordingly, Plaintiff’s allegation herein fails to state sufficient ground for grant of his Motion for Summary Judgment.
CONCLUSION
For the reasons set forth above, the Defendants’ Motion for Summary Judgment should be denied.
DATED:
Respectfully Submitted
_________________________
JOHN RUDDOCK
1924 Bussing Ave.
Bronx NY 10466
_________________________
CHANTE RUDDOCK
JOHN RUDDOCK
1924 Bussing Ave.
Bronx NY 10466
CERTIFICATE OF SERVICE
I, the undersigned, hereby certifies that on [ENTER DATE], via United States Postal Service, First Class, postage pre-paid, that a true and complete copy of the foregoing document was mailed to:
DOUNDLEY EDWARDS,
1924 Bussing Ave.
Bronx NY 10466
_________________________
JOHN RUDDOCK
1924 Bussing Ave.
Bronx NY 10466
_________________________
CHANTE RUDDOCK
JOHN RUDDOCK
1924 Bussing Ave.
Bronx NY 10466
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