Tenant Can Amend Counterclaim to Add Newfound Mold Condition

April 30, 2006

LVT Number: 18864

Landlord sued to evict tenant for nonpayment of rent. Tenant answered, and later asked the court for permission to add an affirmative defense and counterclaim based on a newly discovered mold condition in the apartment. The court ruled against tenant. Tenant appealed and won. Landlord claimed that a settlement agreement in a prior nonpayment case barred tenant from raising the mold claim. In that case, landlord agreed to make repairs in connection with existing water damage. This didn't prevent tenant from raising the new mold condition in the new nonpayment case.

Landlord sued to evict tenant for nonpayment of rent. Tenant answered, and later asked the court for permission to add an affirmative defense and counterclaim based on a newly discovered mold condition in the apartment. The court ruled against tenant. Tenant appealed and won. Landlord claimed that a settlement agreement in a prior nonpayment case barred tenant from raising the mold claim. In that case, landlord agreed to make repairs in connection with existing water damage. This didn't prevent tenant from raising the new mold condition in the new nonpayment case. Even if it resulted from the prior water damage, it was a new condition.

W.E. Residents Corp. v. Tally: NYLJ, 4/28/06, p. 28, col. 3 (App. T. 1 Dept.; Davis, JP, Schoenfeld, J)

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