Sanjurjo v Milio, 2021 NY Slip Op 50208(U) [70 Misc 3d 1224(A)]

There is no dispute that petitioner is the lawful tenant of the subject apartment or that the
respondent is a proper party to this proceeding. The matter was commenced while petitioner was
pro-se by order to show cause and petition dated December 17, 2020. Said order to show cause
directs service of process on respondent by certified mail, return receipt requested by December
19, 2020.

On or about January 20, 2021, prior to respondent serving or filing an answer, petitioner,
represented by counsel, mailed a verified amended petition to respondent by certified mail, return
receipt requested.[FN2]
The amended petition lists five (5) causes of action: order to correct, civil penalties, unlawful
eviction, civil penalties for unlawful eviction, and treble damages for unlawful eviction. The
amended petition's wherefore clause additionally seeks relocation costs from DHPD or
respondent. Respondent, represented by counsel, interposed an answer dated January 21, 2021; it
raises six (6) affirmative defenses in addition to a general denial and allegation that the petition
fails to state a cause of action.

After a conference on January 26, 2021, the case was adjourned to March 4, 2021 for trial. In
the interim, motion practice ensued.

Petitioner moves to dismiss respondent's affirmative defenses pursuant to CPLR§
3211(b) and for summary judgment pursuant to CPLR § 3212. Respondent cross-moves for
leave to file an amended answer, for partial summary judgment and for partial dismissal pursuant
to CPLR § 3211(a)(7).

THE AMENDED PETITION AND AMENDED ANSWER

CPLR § 3025(a) states in relevant part, "[a] party may amend his pleading once without
leave of court within twenty days after its service, or at any time before the period for responding