violations; breach of the warranty of habitability; rent abatement, repair costs, etc.
Petitioner contends that respondent waived its jurisdictional defenses by bringing
unrelated counterclaims, and seeks an order striking respondent's jurisdictional defenses
and counterclaims and setting this matter for trial.
When a respondent interposes a counterclaim that is unrelated to a plaintiff's claim, it
waives any personal jurisdiction defense it may have had since it is taking affirmative
advantage of the court's jurisdiction. (Textile Tech. Exch. v Davis, 81 NY2d 56,
58-59 [1993].) In Textile, the counterclaims at issue were not related because
they concerned a transaction distinct from that described in the complaint. In keeping
with Textile, when a respondent asserts lack of personal jurisdiction as an
affirmative defense in a nonpayment proceeding and{**49 Misc
3d at 1149} simultaneously asserts a counterclaim that is unrelated to
nonpayment of rent, any objection as to personal jurisdiction by the respondent is
waived. (See ROL Realty Co.
LLC v Gordon, 29 Misc 3d 139[A], 2010 NY Slip Op 52048[U] [App Term 1st
Dept 2010] [tenant waived jurisdictional defense because it introduced counterclaims for
harassment, discrimination and overcharge, regardless of the fact that it stipulated to
withdraw two unrelated counterclaims]; 390 Park Ave. Assoc., LLC v Sopher,
2009 NY Slip Op 31134[U] [Sup Ct, NY County 2009] [tenant of a commercial garage
space waived personal jurisdiction defense by interposing unrelated counterclaim for
unpaid parking fees]; see also 405 East 56th St., LLC v Steginsky, 2013 NY Slip
Op 30427[U] [Civ Ct, NY County 2013]; 374 E. Parkway Common Owners Corp. v Albernio, 32 Misc 3d