Section 3025 (c) of the CPLR provides that a court may permit pleadings to be amended before or after judgment to conform them to the evidence, upon such terms as may be just, including the granting of costs and continuances. Moreover, it may do so even in the absence of a motion, provided there is no prejudice to the opposing party. (See Matter of Allstate Ins. Co. v Joseph, 35 AD3d 730, 731 [2d Dept 2006], citing A-1 Cheek Cashing Serv. v Goodman, 148 AD2d 482 [2d Dept 1989].) Here, although petitioner initially objected to Mr. Huggins’ testimony regarding the leaks in his apartment, he raised no objection *612when Mr. Huggins testified about the complaints he made to NYCHA and 311, and about the HP action he filed, nor did his attorney object when Mr. Huggins questioned him regarding a recent conversation they had regarding his motive for bringing this case.
Given petitioner’s failure to object to the bulk of Mr. Huggins’ testimony regarding his retaliatory eviction defense, and given further that petitioner had the opportunity to present rebuttal testimony, but failed to do so; that petitioner had an opportunity to seek a continuance, but failed to do so; and that Mr. Huggins was not represented by counsel, the court deems Mr. Huggins’ answer amended to include an affirmative defense of retaliatory eviction and to conform to the evidence presented in regard thereto.
B. Whether Section 223-b of the Real Property Law Applies to This Case
As noted above, section 223-b applies to “all rental residential premises except owner-occupied dwellings with less than four units.” (Real Property Law § 223-b [6].) Although the subject building has only two units, section 223-b applies to this case because Mr. Barr does not live there.