As noted above, Mr. Barr testified that he commenced this proceeding because Mr. Huggins refused to pay his rent in August and told him to take him to court. Given the court’s finding that Mr. Huggins withheld his rent to enforce his rights under the warranty of habitability, the court also finds that Mr. Barr served his notice to quit in retaliation for Mr. Huggins having taken action that is protected under section 223-b.
E. Whether Mr. Huggins is Entitled to Entry of Judgment in His Favor
Having found that Mr. Barr served his notice to quit in retaliation for Mr. Huggins’ exercise of protected activity, the court must enter judgment for Mr. Huggins if it also finds that Mr. Barr “would not otherwise have commenced” this case. (See Real Property Law § 223-b [4].)
Mr. Barr could have commenced a holdover proceeding in February 2012, after Mr. Huggins’ lease expired. Nevertheless, he did not serve a notice to quit until the end of August, and did so, as he stated, because Mr. Huggins refused to pay his rent that month. It appears, therefore, that Mr. Barr would not have commenced this case if Mr. Huggins had paid his rent. Given that Mr. Huggins’ share of the rent was determined by NYCHA and set forth in Mr. Barr’s HAP contract with NYCHA, and the HAP contract was still in effect, Mr. Barr could have sought Mr. Huggins’ share of the rent in a nonpayment proceeding. The court concludes that by electing instead to commence a holdover proceeding, Mr. Barr sought to retaliate against Mr. Huggins for withholding rent, and would not otherwise have commenced this case.
Accordingly, the petition is dismissed. The Clerk of the Court shall enter judgment in favor of Mr. Huggins and against Mr. Barr.