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, [*5]section 223-b applies to this case because Mr. Barr does not live there.
C. Whether the Statutory Presumption of Retaliation Applies
According to Mr. Barr, he commenced this proceeding because in August 2012 Mr. Huggins refused to pay his rent and told him to take him to court. In light of Mr. Huggins' testimony that he had leaks in his apartment, testimony which was supported by HPD's printout of violations, his withholding of rent in August, coupled with his telling Mr. Barr to take him to court, constitutes an action taken in good faith to enforce his rights under section 235-b of the Real Property Law, the statutory warranty of habitability,[FN3]
and therefore is action protected under section 223-b. (See Real Property Law § 223-b [1] [b].) However, because withholding rent is not equivalent to commencing an action or proceeding to enforce rights under section 235-b, it is insufficient to create a rebuttable presumption of retaliation. (See § 223-b [5] [b].)