Opinion
No. HULT175–13.
2013-06-24
Hilde MARTENS, Petitioner, v. Richard O'LEARY, Respondent.
C. STEPHEN HACKELING, J.
Pursuant to the provisions of the New York RPAPL Sec. 711(1), Hilde Martens, the above captioned petitioner/landlord (hereafter “landlord or Ms. Martens”), commenced this holdover eviction proceeding against the respondent/tenant Richard O'Leary (hereafter “tenant or Mr. O'Leary”) via petition dated April 1, 2013. The tenant moved to dismiss the petition pursuant to Sec. 741 of the New York RPAPL and Sec. 223(b) of the New York RPL. The Sec. 741 challenge asserting the insufficiency of the language of the petition was cured by the filing of an amended petition. A trial of the matter was conducted on May 30, 2013, with the parties stipulating that the sole legal controversy to be adjudicated involved the tenant's assertion of the affirmative defense/counterclaim of “retaliatory eviction” as defined in Sec. 223–b of the New York Real Property Law.
The Facts
The undisputed relevant facts established at trial are that Mr. O'Leary is a custodian at a local high school and has been a tenant at 76 Bayview Ave., Northport, New York for over 28 years. For 26 years until 2011, Mr. O'Leary harmoniously occupied a studio type apartment which did not have a kitchen but did have a bathroom. Mr. O'Leary's apartment was one of five such units in the building. Mr. O'Leary pays $510.00 per month on a month to month oral basis and until 2011 performed certain custodial chores such as garbage removal and landscaping for the building and had access to the basement and laundry room. Approximately seven months ago Mr. O'Leary lost access to the basement and laundry room.
In August 2011 Mr. O'Leary complained to the landlord of a deteriorated staircase and the removal of a carpet. In January and April 2012, Mr. O'Leary complained to the Village of Northport code compliance office of a rat in another tenant's apartment. The Village Administrator testified he inspected the premises and found no evidence of rats in the building. He recommended that the landlord retain an exterminator to do an inspection and treatment if necessary, which occurred.
The landlord commenced a small claims action seeking to recover $1,750.00 for damage done to her driveway by Mr. O'Leary's car. The lawsuit was dismissed August 15, 2012. While not testified about at trial; Mr. O'Leary's motion papers indicate he has commenced an undescribed action against the landlord in the Suffolk County Supreme Court. Mr. O'Leary stopped paying rent in September 2012 and is now nine months delinquent. In October the tenant experienced a sewage backup in his bathroom. He complained to the landlord who advised she would call a plumber after the weekend. The tenant did not desire to wait and retained a plumber who fixed the problem by cutting out the blocked section of a four inch sewer pipe. The plumber left the cut pipe on the premises and Mr. O'Leary called the Northport code compliance office in late October 2012. He then called the Village Administrator to complain about the code compliance officer's failure to issue the landlord a summons. Mr. Eugene Guido, the Administrator, testified he inspected the situation on December 14, 2012 and asked the landlord to dispose of the pipe, which was done. No summons or notices of violation were ever issued. The landlord served Mr. O'Leary with a 30 day termination of lease and Notice to Quit dated February 23, 2013 demanding possession on April 1, 2013.
Issues Presented
Do the facts presented establish that the tenant made a “good faith” complaint to a governmental authority as envisioned by Sec. 223(b)(5)(a), so as to invoke the statutory proscribed six month “presumption of retaliation” by the landlord? If so, did the landlord rebut the presumption? If not, did the tenant meet his burden of proof to establish a retaliatory eviction?
The Law
Real Property Law Sec. 223(b)'s statutory cause of action for retaliatory eviction was designed as a vehicle to encourage tenants to report housing code violations without fear of landlord reprisal. See, 3 N.Y. Landlord & Tenant Incl. Summary Proc. § 43:34, (Rasch 4th Ed.1998). However, a violation of RPL Sec. 223(b) arises only from certain specifically identified types of retaliatory behavior. Weil v. Kaplan, 168 Misc.2d 68 (N.Y. Dist. Ct., Nassau Co., 1996), affirmed 175 Misc.2d 482 (App. Term, 2nd Dept., 9th & 10 Dists., 1997). The 1979 statute seeks to codify a common law remedy and as such, must be strictly construed. See New York Statutes, Sec. 301. It provides in relevant part as follows:
1. No landlord of premises or units to which this section is applicable shall serve a notice to quit upon any tenant or commence any action to recover real property or summary proceeding to recover possession of real property in retaliation for:
(a) A good faith complaint, by or in behalf of the tenant to a governmental authority of the landlord's alleged violation of any health or safety law, regulation, code, or ordinance, or any law or regulation which has as its objective the regulation of the premises used for dwelling purposes ...
5. In an action or proceeding instituted against a tenant of premises or a unit which this section is applicable, a refutable presumption that the landlord is acting in retaliation shall be created if the tenant establishes that the landlord served a notice to quit, or instituted an action or proceeding to recover possession, or attempted to substantially alter the terms or the tenancy, within six months after:
(a) A good faith complaint was made, by or in behalf of the tenant, to a governmental authority of the landlord's violation of any health or safety law, regulation, code, or ordinance, or any law or regulation which has as its objective the regulation of premises used for dwelling purposes or which pertains to the offense of rent gouging in the third, second or first degree ...
Burden of Proof
The establishment of the rebutable presumption of retaliation appears determinative in this action as the landlord did not testify. “In the absence of the retaliation presumption, the tenant has the burden to establish that “landlord's sole or overriding” reason for terminating the tenancy was to retaliate for the tenants right to report code violations ..., to succeed in this difficult task, the tenant must show the landlord's state of mind, purposes, and motives, relying almost exclusively on circumstantial evidence. It has been suggested that this may be accomplished either by showing affirmatively that retaliation was the sole purpose, or showing that there was no other reasonable explanation for the landlord's action”. 3 N.Y. Landlord & Tenant Incl. Summary Proc., § 43:34 (Rasch, 4th Ed.1998).
However, Sec. 223(5) creates six month presumption of retaliation conditioned solely upon the finding of a good faith complaint to a governmental authority within a six month period prior to serving a “Notice to Quit”. Clearly, the New York State legislature decided to switch the burden of proof to the landlord to establish “no intention of retaliation” under this statutory mechanism, conditioned upon the finding of a “good faith” complaint to an appropriate municipal authority during the six month window period. If the statutory presumption is established, the complete absence of rebuttal evidence in the trial record would prima facie establish the tenant's retaliation case.
Good Faith Complaint
The only factual issue to be resolved concerning the presumption involves the “good faith” nature of the complaint to the governmental authorities during the six month window. The term “good faith” is not defined in New York's Real Property law, but is codified in Sec. 1–201(19) Unified Commercial Code which provides that “good faith means honesty in fact in the conduct or transaction concerned”.
The landlord's Notice to Quit is dated February 23, 2012. The facts presented during the six month window period do not establish a “good faith” basis for the subject complaint. The Court notes that the only complaint lodged during the six month look back period involved the sewage back-up situation (late October 2012). All the other complaints involving staircases, carpets and rats happened over a year earlier and were addressed either by the landlord's cure of the situation or the code compliance officer's determination that no violations existed.
Mr. O'Leary's trial testimony about the October complaint admitted the landlord's offer to send in a plumber to make repairs after the weekend and also that he made his own arraignments to make immediate repairs. The O'Leary retained plumber cut out the four foot section of pipe and left it on the premises. Rather than direct his contractor to remove the pipe, or to do so himself, Mr. O'Leary instead made a complaint to code enforcement officers who would not issue a housing violation summons. Instead, he filed a December 2012 complaint about the code enforcement officers refusal to act with their supervisor, the Village Administrator. No summons were issued after the Administrator's inspection, and his testimony clearly established that Mr. O'Leary's pipe complaint and even his prior complaints, either were unsubstantiated or at best minor in nature and easily and quickly corrected. It is clear that the only complaint made during the six month window was unfounded, illegitimate, self created, self correctable and therefore not made in “good faith”.
In the absence of the presumption of retaliation, the burden now falls upon the tenant. However, all his assorted complaints, whenever made, and the totality of said complaints over the duration of the tenancy may be considered. In this case there were many factors which surely influenced the landlord's decision to terminate the tenancy, including the tenant's failure to pay rent for nine months, as well as the existence of two civil litigations between the parties. The Court notes that retaliatory eviction is not a defense to a non-payment proceeding. See, 390 W. End Assoc. v. Riff, 166 Misc.2d 730 (App. Term 1st Dept.1995). However, even in a holdover proceeding the concept of retaliatory eviction can not be used as a defense to avoid paying rent. 601 West 160 Realty Corp. v. Henry, 189 Misc.2d 352 (App. Term 2nd Dept, 11th & 13th Dists., 2001). The nine month period of withholding rent vitiates the colorable nature of the tenant's retaliation claim. In the absence of a clear breach of the warranty of habitability; it would be reasonable to infer that a nine month rent strike was a justifiable grounds to terminate a leasehold interest.
Additionally, the commencement of the rent strike appears to coincide with the initiation of the parties litigation in both the District and Supreme Courts. The existence of non eviction related civil litigation is not, in and of itself, an adequate basis for a retaliatory eviction claim. See, East 145 Co. v. Benayoun, 190 Misc.2d 164 (App. Term 1st Dept.2001); citing to Weil v. Kaplan, cite infra. Viewing the totality of all the parties' dealings and complaints, corrections and interactions; the Court concludes that the tenant has not met his burden of establishing the prima facie elements of a retaliatory eviction claim.
Accordingly, the tenant's affirmative defense/counterclaim is dismissed. The landlord is granted an immediate judgment of possession and a warrant of eviction.