Opinion
2002-1131 SC.
Decided November 21, 2003.
Appeal by tenant from a final judgment of the District Court, Suffolk County (M. Fitzgibbon, J.), entered June 7, 2002, awarding landlord possession, rent arrears and use and occupancy in the sum of $4,800.
PRESENT: DOYLE, P.J., WINICK and SKELOS, JJ.
Final judgment unanimously affirmed without costs. In this summary holdover proceeding, the court was entitled to find, upon the evidence presented, that landlord gave more than a month's notice of termination to tenant, which satisfied Real Property Law § 232-b and the "Lessee Agreement" itself, and that the notice was timely, definite, unequivocal and effective upon the 14th of the month, the anniversary date of the month-to-month tenancy ( see Lindquist v. McAlpin, NYLJ, Feb. 22, 1991 [App Term, 9th 10th Jud Dists]; Hunt v. Hunt, 188 Misc 534 [City Ct, Middletown 1947]). We note that although the petition referred to tenant as a "licensee" despite a determination in a prior proceeding in the District Court that she was in fact a tenant, in all respects the parties and the court proceeded in the instant matter under the assumption that the respondent was in fact a tenant, and thus there was no prejudice to tenant from her designation as a licensee in the petition ( see generally Birchwood Towers #2 Assoc. v. Schwartz, 98 AD2d 699; Paikoff v. Harris, 185 Misc 2d 372 [App Term, 2d 11th Jud Dists 1999]).
Having complied with Real Property Law § 232-b, to be entitled to final judgment, landlord need only establish that it terminated the lease according to its terms ( Amalgamated Warbasse Houses, Inc. v. Shafer, NYLJ, June 16, 1999 [App Term, 2d 11th Jud Dists]), which in this case included 30 days' "written notice to Lessee, if they are asked to leave for any reason whatsoever," including failure to pay rent and misuse of property, as provided in Schedule A to the "Lessee Agreement." In this proceeding, the court, as trier of fact, was entitled to find, as a fair interpretation of the evidence ( see Protano v. 16 N. Chatsworth Ave. Corp., 272 AD2d 597) that tenant had not paid rent in a year; that she was improperly occupying common areas of the premises; that she was improperly residing with her son in the premises, which were intended to provide transitional housing to single homeless veterans; and that landlord properly terminated the tenancy on these grounds in accordance with the "Lessee Agreement."
Tenant's contention that despite her longstanding failure to pay rent, landlord must still offer her a lease pursuant to Suffolk County Code § 406, is without merit. Suffolk County Code § 406 has no application to the present proceeding. As noted, the tenancy at issue was month-to-month, and thus the cited provision does not apply to it ( see id. § 406-3).
Tenant failed to establish any entitlement to an abatement due to breach of the warranty of habitability, and the court below properly so held. Tenant alleged that she complained to the Town in August 2000 and that she received an abatement from landlord in April 2001 as a result of a number of conditions in the premises that could potentially support such a claim ( see generally Park West Mgt. Corp. v. Mitchell, 47 NY2d 316).
However, tenant provided no further details as to when she may have complained to landlord or what level of abatement she received, and did not give any evidence at the trial as to when or for how long the various conditions existed. Thus, she failed to establish her entitlement to an abatement due to breach of the warranty of habitability ( see e.g., Vilvert v. Bousiquoire, NYLJ, Dec. 27, 2000 [App Term, 9th 10th Jud Dists]; see also Koch v. MacQueen, NYLJ, Nov. 18, 1999 [App Term, 9th 10th Jud Dists]; Edgmont Corp. v. Audet, NYLJ, Nov. 1, 1996 [App Term, 9th 10th Jud Dists] [court may determine damages for breach of warranty of habitability upon proof regarding the nature, scope and duration of breach]).
Finally, tenant's claim that this holdover proceeding was retaliatory as brought within six months of tenant's complaint to the Town about the condition of the premises ( see Real Property Law § 223-b) is meritless. Tenant raised this presumption as a defense, not as a counterclaim ( see 601 W. 160 Realty Corp. v. Henry, 189 Misc 2d 352 [App Term, 2d 11th Jud Dists 2001]), and in this context Real Property Law § 223-b (5) (c) specifically provides that "the presumption [of retaliation] shall not apply in an action or proceeding based on the violation by the tenant of the terms and conditions of the lease or rental agreement, including nonpayment of the agreed-upon rent." As the present summary proceeding arises from, among other things, tenant's undisputed failure to pay the agreed-upon rent ( cf. Mayfair York v. Zimmerman, 183 Misc 2d 282 [Civ Ct, NY County 1999] [applying presumption of retaliation after finding that landlord's claim of lease violation was meritless]), tenant is not entitled to the presumption (601 W. 160 Realty Corp., 189 Misc 2d at 353).