Opinion
2002-1240 W C.
Decided December 3, 2003.
Appeal by tenant from an "order" of the Justice Court, Village of Tuckahoe, Westchester County (M. O'Toole, J.), dated July 30, 2002, deemed an appeal from the final judgment (see CPLR 5520 [c]) entered July 30, 2002, awarding landlord possession.
Final judgment unanimously affirmed without costs.
PRESENT: DOYLE, P.J., LIFSON and RUDOLPH, JJ.
The parties first entered into a one year Section 8 lease agreement on March 1, 1999, for $1,750 per month, which lease was subsequently renewed. On October 6, 2001, tenant complained to a governmental agency about mold and feces that had been in his basement since a sewage backup in 1999. By notice to quit dated October 9, 2001, landlord informed tenant that the lease would no longer be renewed and he had to vacate upon the expiration of the lease on February 28, 2002. In November 2001, the parties began discussions for tenant to remain in the premises through the end of June 2002, so that tenant's children could complete the school year. However, the parties were not able to agree on the terms for the extension. Thereafter, landlord commenced this holdover proceeding in April 2002, and tenant raised the defense of retaliatory eviction under Real Property Law § 223-b. Following trial, the court below awarded landlord a final judgment of possession, upon finding that landlord's "refusal to renew the lease was not retaliatory because refusal was due rather to the parties' inability to agree on new terms." Although we agree with the determination of the court below, we do so on other grounds.
Landlord's attempt to extend the tenancy and alter the lease terms does not rebut the presumption that the eviction was retaliatory ( see Real Property Law § 223-b).
Nevertheless, the record indicates that landlord rebutted the presumption of retaliation by providing, by a preponderance of the evidence, a credible explanation of its non-retaliatory motive for the eviction ( see Real Property Law § 223-b). Consequently, landlord was properly awarded possession.