The third cause of action is duplicitous. First, it alleges that defendant’s transmittal of a “Notice to Vacate [sic]” was in retaliation for his filing an application under the Loft Law. Next, plaintiff alleges that defendant’s actions have interfered with his peace and quiet use and occupancy with an intent to cause plaintiff to vacate. This, he Says, amounts to harassment under section 235-d of the Real Property Law for which he seeks compensatory and punitive damages. Defendant attacks the sufficiency of this cause and seeks to strike the request for punitive damages under CPLR 3024 (subd [b]) (scandalous or prejudicial matter unnecessarily inserted).
In Callis v 91 Fifth Ave. Corp. (NYLJ, Nov. 25, 1981, p 11, col 3, revd on other grounds 91 AD2d 565) Justice Blyn, at Special Term, dismissed a cause of action for retaliatory eviction under section 223-b of the Real Property Law because no evictions had yet eventuated. The Appellate Division did not review this disposition. Section 223-b affords a tenant served with a notice to quit a cause of action where such service was in retaliation for actions by the tenant in good faith, inter alia, to secure rights under any law of the State of New York having an objective of regulating premises for dwelling purposes. For purposes of analysis, it will be assumed that the Loft Law is one of these statutes. Nothing in this section requires a ripened eviction before retaliation becomes actionable. Nevertheless, it does require the landlord to serve a notice to quit. Furthermore, section 223-b creates a presumption of retaliation when the landlord, inter alia, serves a notice to quit within six months after the tenant commences administrative proceedings under the Loft Law; but this presumption is unavailable in an action or proc