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Civil Court of the City of New York, Kings County, May 14, 2010
APPEARANCES OF COUNSEL
Brooklyn Legal Services Corp. A, Brooklyn, for respondents. Rappaport, Hertz, Cherson & Rosenthal, P.C., Forest Hills, for petitioner.
{**28 Misc 3d at 469} OPINION OF THE COURT
Gary F. Marton, J.
{**28 Misc 3d at 470}This is a holdover proceeding. Petitioner alleges that she is the landlord, that the premises is located in a one-family house, that the premises is not subject to rent regulation, and that she may regain possession thereof because the respondents' tenancy has ended. Respondents interposed an answer asserting what are characterized as five defenses and four counterclaims. The first defense is that the premises is rent stabilized, the second is retaliatory eviction, the third is the failure to plead with sufficient specificity, the fourth is the absence of a certificate of occupancy, and the fifth is breach of the warranty of habitability; the first counterclaim is for rent overcharge and treble damages, the second is for retaliatory eviction, the third is for breach of the warranty of habitability, and the fourth is for an order to correct housing code violations.
Now, respondents move for summary judgment. As is stated in their notice of motion, respondents seek (a) dismissal of the proceeding on the ground that the premises is rent stabilized,
(b) judgments on the first three counterclaims, and (c) an order to correct. The motion is denied and the proceeding is restored to the court's calendar for trial on Monday, June 10, 2010 at 9:30 a.m.
Summary judgment must be "denied if any party shall show facts sufficient to require a trial of any issue of fact." (CPLR 3212 [b].) Here, there are issues of fact which must be tried. For example, respondents assert both as a defense and as a counterclaim that petitioner brought this [*2]proceeding to retaliate against them for lodging complaints about, among other things, a lack of heat; however, petitioner avers that respondents destroyed the heating system. For another example, respondents assert as both a defense and a counterclaim that petitioner breached the warranty of
habitability,[FN1] yet petitioner avers that respondents prevented her from making repairs. The court may not resolve these disputes on motion papers.
Also, respondents seek an order directing petitioner to cure housing code violations; yet the court file includes documents showing that on January 22, 2010 and March 1, 2010, respondents{**28 Misc 3d at 471} requested an inspection of the premises by the City of New York's Department of Housing Preservation and Development (HPD), that inspections were scheduled for, respectively, February 17, 2010 and March 15, 2010, that different HPD
inspectors[FN2] went to the premises on the scheduled dates, and that on each occasion the inspector reported that there were no violations because he was unable to gain access to the premises. Respondents do not address this issue. Moreover, the counterclaim here for an order to correct extant housing code violations "has no bearing on the outcome of this summary . . . proceeding and, therefore, [must be] severed from the proceeding (see, CPLR 407)." (City of New York v Candelario, 223 AD2d 617, 618 [2d Dept 1996].)
Respondents also assert that they have demonstrated as a matter of law that petitioner owns and operates as a single multiple dwelling both the building in which the premises is located and another building, that therefore that they have established that the premises is located in a horizontal multiple dwelling, that together the two buildings have at least six residential units, and therefore that rent-stabilization coverage under the Emergency Tenant Protection Act of 1974 (ETPA) (as added by L 1974, ch 576,

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