“an action or proceeding in a court or administrative body of competent jurisdiction to secure or enforce against the landlord or his agents any rights under the lease or rental agreement, under section two hundred thirty-five-b of this chapter, or under any other law of the state of New York, or of its governmental subdivisions, or of the United States which has as its objective the regulation of premises used for dwelling purposes” (§ 223-b [5] [b]).
Where the presumption of retaliation is created, the landlord may overcome it by providing “a credible explanation of a non-retaliatory motive for his acts,” unless the tenant disproves that explanation by a preponderance of the evidence. (§ 223-b [5].)
A tenant seeking to invoke the protections of section 223-b must assert retaliatory eviction as an affirmative defense. (See § 223-b [4].)
A. Whether Mr. Huggins May Assert a Retaliatory Eviction Defense
As noted above, Mr. Huggins did not file a written answer, and the only defense he raised at the pretrial conference was that his lease was still in effect. He did not raise a retaliatory eviction defense until he began to testify on the first day of trial. Because retaliatory eviction must be asserted as an affirmative defense, the court may consider that defense, therefore, only if Mr. Huggins’ answer is amended to include it as such.