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.
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 Check 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{**41 Misc 3d at 612} when 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.