Tuesday, September 6, 2016

ON NEW YORK RETALIATORY EVICTION LAW



New York state law (N.Y. Real Prop. Law § 223-b) prohibits landlords from retaliating against tenants. The kinds of retaliatory acts covered include terminating a tenancy or filing an eviction lawsuit; increasing the rent; or decreasing services, such as locking the laundry room. New York state law presumes retaliation if the landlord acts in these types of negative ways within six months of the date that a tenant has exercised a legal right, such as complaining to the landlord about an unsafe heater in the apartment.

ORANGE FALLS, LLC v. Forrest, 2016 NY Slip Op 50637 - Glen Falls NY: City Court April 21, 2016:

"In 1979, the New York State Legislature enacted RPL § 223-b in an attempt to protect residential tenants from evictions by landlords in retaliation against those tenants exercising, in good faith, their rights to exercise their section 235-b remedies and various other remedies. See: Rasch, Landlord and Tenant, § 1323.5 (Supplement). Real Property Law Sec. 223(b) was designed as a vehicle to encourage tenants to report housing code violations without fear of landlord reprisal. See, 3 NY Landlord & Tenant Incl. Summary Proc. § 43:34 (Rasch 4th Ed. 1998).

Section 223-b(1)(b) states that no landlord shall serve a tenant or commence an action in retaliation for actions taken in good faith to secure or enforce rights under section 235-b or any New York State law which has as its objective the regulation of leased premises. The prohibitions against retaliatory evictions set forth in RPL § 223-b only prohibit the landlord from certain expressly enumerated conduct. A landlord is entitled to evict the respondent from the leased premises for any legal reason except for those reasons expressed in RPL § 223-b.

The statutory protections against retaliatory eviction apply to "all rental residential premises except owner-occupied dwellings with less than four units." (RPL § 223-b[6]). This section provides, among other things, that no landlord shall serve a notice to quit or commence a summary proceeding to recover possession of real property in retaliation for "[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 premises used for dwelling purposes ..." (RPL § 223-b[1][a]).

If a court finds that the landlord commenced an eviction action or proceeding in retaliation for the tenant having taken any protected action, and also finds that the landlord would not otherwise have commenced such action or proceeding, then a "judgment shall be entered for the tenant." (RPL § 223-b[4]).

The burden of establishing the affirmative defense of retaliatory eviction lies with its proponent, the tenant. See: 339-347 E. 12th St. LLC v. Ling, 35 Misc 3d 30, 942 N.Y.S.2d 862 (App. Term, 1st Dept., 2012). For the Respondent to prevail in her defense of retaliatory eviction, she must be established that: (1) the tenant exercised a protected right in the conduct that she undertook; (2) the grievance complained of by the tenant is bona fide, reasonable, and serious in nature, and has a foundation in fact; (3) the tenant did not create the condition upon which the defense is based; (4) the grievance complained of was present at the time the landlord commenced the proceeding; and (5) the overriding reason the landlord is seeking the eviction is to retaliate against the tenant for exercising his or her constitutional rights. Toms Point Apartments v. Goudzward, 72 Misc 2d 629, 339 N.Y.S.2d 281 (Dist. Ct., Nassau County, 1972), judgment aff'd on other grounds, 79 Misc 2d 206, 360 N.Y.S.2d 366 (App. Term, Second Dept., 1973); 89 NY Jur.2d Real Property — Possessory Actions § 111.

RPL § 223-b provides a rebuttable presumption of retaliation where a landlord serves a notice to quit or commences an eviction proceeding within six months after the tenant made a good faith complaint "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 ..." (RPL § 223-b[5][a]).

.........

 Once the tenant proves a prima facie defense of retaliatory eviction, the burden of proof then shifts to the landlord to come forward with evidence to rebut the presumption by showing some independent and non-retaliatory basis for the decision to evict the tenant. See: Paikoff v Harris, 178 Misc 2d 366, 368 (New York City Court 1998), aff'd as modified, 185 Misc 2d 372 (App. Term, Second Dept. 1999); 14 Carmody-Wait 2d § 90:161."

In that case, however, the landlord was able to rebut the presumption and demonstrated an independent and non-retaliatory basis for the decision to evict the tenant as the landlord commenced eviction proceedings based on the tenant's "hoarding"  and thus the affirmative defense of retaliatory eviction was dismissed.

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