PSRS Realty v. Prosolov

Landlord/Tenant Law

New York Law Journal

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Judge Scott Fairgrieve

PSRS Realty commenced a holdover suit to evict tenant Prosolov from the subject premises claiming he did not take possession of the premises, but illegally assigned or sublet it to undertenants. Prosolov denied in his verified answer the allegations that PSRS properly terminated the lease. Yet, the court noted the answer did not raise as an affirmative defense the failure of PSRS to serve a three day notice to terminate. Prosolov moved to dismiss the notice of petition and petition due to such failure, but PSRS contended Prosolov waived its failure to serve the three day notice of termination as it was not raised as an affirmative defense in the answer. Prosolov contended the issue was properly raised by the denial of paragraph 9 of the petition, which alleged PSRS properly terminated the lease. The court ruled Prosolov properly raised the issue by the denial in his answer, hence, was not required to raise this argument as an affirmative defense. It concluded the answer may raise as an issue the failure of PSRS to properly terminate the lease by a denial. As PSRS admitted it failed to serve the three day notice of termination as required by the lease, the proceeding was dismissed as the lease was not effectively terminated.

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