Chinatown Preserv. HDFC v Yu Hua Chen, 2010 NY Slip Op 50730(U) [27 Misc 3d 1213(A)]

judgment are respondents' first and second counterclaims alleging breach of lease and diminution
of services.

To prevail under CPLR 3212, a moving party must demonstrate that summary judgment is
appropriate because only legal questions exist. (Zuckerman v City of New York, 49
NY2d 557, 562 [1980].) The court's duty "is not to resolve issues of fact, but merely to determine
if such issues exist." (Matter of Atiram, 25 Misc 3d 1241 [A], 2009 NY Slip Op 52534
[U], at *1 [Sur Ct, Kings County Dec. 16, 2009].) The court must deny a summary-judgment
motion unless it "clearly appear[s] that no material triable issue of fact is presented."
(Daliendo v Johnson, 147 AD2d 312, 317 [2d Dept 1989].) This is true even if the
opposing party defaults on a summary-judgment motion. (Liberty Taxi Mgt., Inc. v Gincherman, 32 AD3d 276, 277 n * [1st
Dept 2006].)

Material issues of fact are in dispute. The central factual dispute is whether petitioner or
either respondent is responsible for constructing illegal partitions and bunk beds in the subject
apartment and whether petitioner's removal of the illegal partitions should entitle respondents to
a rent abatement. Respondents allege that they took possession of three-bedroom apartments
from a prior landlord and that petitioner is required to provide a three-bedroom apartment.
Respondents' leases do not specify the number of bedrooms in the subject apartments. Petitioner
alleges that respondents are responsible for constructing the illegal partitions and bunk beds and
are not entitled to a rent abatement. Petitioner contends that respondents' attorney admitted that
respondent Chen reinstalled the bunk beds, a reinstallation that resulted in the second DOB