officer's failure to issue the landlord a summons. Mr. Eugene Guido, the Administrator,
testified he inspected the situation on December 14, 2012 and asked the landlord to
dispose of the pipe, which was done. No summons or notices of violation were ever
issued. The landlord served Mr. O'Leary with a 30 day termination of lease and Notice to
Quit dated February 23, 2013 demanding possession on April 1, 2013.
Issues Presented
Do the facts presented establish that the tenant made a "good faith" complaint to a
governmental authority as envisioned by Sec. 223 (b)(5)(a), so as to invoke the statutory
proscribed six month "presumption of retaliation" by the landlord? If so, did the landlord
rebut the presumption? If not, did the tenant meet his burden of proof to establish a
retaliatory eviction?
The Law
Real Property Law Sec. 223(b)'s statutory cause of action for retaliatory eviction was
designed as a vehicle to encourage tenants to report housing code violations without fear
of landlord reprisal. See, 3 NY Landlord & Tenant Incl. Summary Proc. §43:34,
(Rasch 4th Ed. 1998). However, a violation of RPL Sec. 223 (b) arises only from certain
specifically identified types of retaliatory behavior. Weil v. Kaplan, 168 Misc 2d
68 (NY Dist. Ct., Nassau Co., 1996), affirmed 175 Misc 2d 482 (App. Term, 2nd Dept.,
9th & 10 Dists., 1997). The 1979 statute seeks to codify a common law remedy and as
such, must be strictly construed. See New York Statutes, Sec. 301. It provides in relevant
part as follows:
1. No landlord of premises or units to which this section is applicable shall
serve a notice to quit upon any tenant or commence any action to recover real property or
summary proceeding to recover possession of real property in retaliation for :