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129th St. Cluster Assoc. LP v Levy 2012 NY Slip Op 32988(U) December 19, 2012 Civil Court, New York County Docket Number: 67445/11 Judge: Sabrina B. Kraus Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK: HOUSING PART R ____________________________________________X 129th STREET CLUSTER ASSOC LP, Petitioner-Landlord -againstDECISION & ORDER Index No.: L&T 67445/11 HON. SABRINA B. KRAUS TERESA LEVY 47-49 West 129th Street, Apt 4D NEW YORK, NY 10009 Respondent-Tenant _____________________________________________X BACKGROUND The underlying holdover proceeding was commenced by Petitioner against Respondent the Rent Stabilized tenant of record based on allegations that Respondent has created a nuisance in the Subject Premises by creating noise, acting in a harassing manner towards other tenants and other related behavior. Respondent has appeared by counsel and served a demand for a bill of particulars and answer and counterclaims. Petitioner now moves to dismiss certain defenses in the answer and vacate the demand for a bill of particulars. MOTION TO DISMISS DEFENSES The first affirmative defense asserts a failure to state a cause of action. This defense is not subject to a motion to strike as it may be asserted at any time (CPLR 3211(e); Riland v Todman 56 AD2d 350). The motion to dismiss the first affirmative defense is denied.

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The second affirmative defense asserts lack of subject matter jurisdiction. Housing Court always has subject matter jurisdiction over a holdover proceeding. We call the attention of the bar to the loose usage of the terms `jurisdictional defect' or `jurisdictionally defective' in summary proceedings. Where, as here, the Civil Court has jurisdiction of the subject of the proceedings under article 7 of the Real Property Actions and Proceedings Law and jurisdiction of the person of the respondent has been obtained as provided by law, the proceeding is not `jurisdictionally defective' Birchwood Towers # 2 Ass v Schwartz 98 AD2d 699, 700. To the extent that the second affirmative defense asserts that the termination notice is insufficient to serve as a predicate for the proceeding, the court also finds that the defense must be dismissed. The notice is sufficiently detailed to advise the tenant of the allegations underlying the proceeding and permit the tenant to frame a defense (RSC

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