Perry Properties v. Servico Protective Covers, Inc.

Judgment unanimously reversed, without costs, and motion denied, in accordance with the following memorandum: Plaintiff sued its tenant for past-due rent in the amount of $11,000 and defendant answered asserting the affirmative defense of partial constructive eviction. It also pleaded two counterclaims alleging breach of the lease covenant to repair and seeking damages in the total amount of $17,322.50. We agree with Special Term that the affirmative defense is not sufficient to defeat the claim for rent and charges concededly due the landlord under the lease because the tenant remained in possession (see Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 83; City of New York v Pike Realty Co., 247 NY 245, 247; Boreel v Lawton, 90 NY 293, 297). Special Term also properly found that the plaintiff was entitled to judgment on its complaint. However, defendant’s counterclaims exceeded the amount of plaintiff’s claim and were inseparable from it. Plaintiffs cause of action should be severed and entry of the plaintiffs judgment should be stayed pending trial and disposition of the counterclaims (Chisholm Ryder Co. v Munro Games, 58 AD2d 972; Knitcraft Foundations v City of New York, 58 AD2d 536). (Appeal from judgment of Erie Supreme Court—summary judgment.) Present—Moule, J. P., Cardamone, Simons, Hancock, Jr., and Denman, JJ.