retaliation was the sole purpose, or showing that there was no other reasonable
explanation for the landlord's action". 3 NY Landlord & Tenant Incl. Summary Proc.,
§43:34 (Rasch, 4th Ed. 1998).
However, Sec. 223(5) creates six month presumption of retaliation conditioned
solely upon the finding of a good faith complaint to a governmental authority within a six
month period prior to serving a "Notice to Quit". Clearly, the New York State legislature
decided to switch the burden of proof to the landlord to establish "no intention of
retaliation" under this statutory mechanism, conditioned upon the finding of a "good
faith" complaint to an appropriate municipal authority during the six month window
period. If the statutory presumption is established, the complete absence of rebuttal
evidence in the trial record would prima facie establish the tenant's retaliation case.
Good Faith Complaint
The only factual issue to be resolved concerning the presumption involves the "good
faith" nature of the complaint to the governmental authorities during the six month
window. The term "good faith" is not defined in New York's Real Property law, but is
codified in Sec. 1-201(19) Unified Commercial Code which provides that "good faith
means honesty in fact in the conduct or transaction concerned".
[*4]
The landlord's Notice to Quit is dated February
23, 2012. The facts presented during the six month window period do not establish a
"good faith" basis for the subject complaint. The Court notes that the only complaint
lodged during the six month look back period involved the sewage back-up situation
(late October 2012). All the other complaints involving staircases, carpets and rats
happened over a year earlier and were addressed either by the landlord's cure of the