Park Terrace Gardens, Inc. v. Penkovsky , 954 N.Y.S.2d 451 ( 2012 )

— Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered April 9, 2012, which granted plaintiff’s cross motion for summary judgment on its cause of action for ejectment and struck defendants-appellants’ (defendants) answer and counterclaims, unanimously modified, on the law, to reinstate the answer and counterclaims, and otherwise affirmed, without costs.

Ejectment was properly based on defendants’ repeated failures to comply with orders directing payment of use and occupancy, which was a condition of their continued occupancy of their cooperative apartment (see Rose Assoc. v Johnson, 247 AD2d 222 [1st Dept 1998]). However, plaintiff did not move to strike the answer and counterclaims, and there was no authority for doing so. Concur — Andrias, J.E, Friedman, DeGrasse, Román and Gische, JJ.