in which it is established that the condition from which the complaint or action arose was
caused
by the tenant, a member of the tenant's household, or a guest of the tenant. Nor shall it
apply in a
case where a tenancy was terminated pursuant to the terms of a lease as a result of a bona
fide
transfer of ownership
(RPL §223-b[6]).
The subject premises is a two-family, owner-occupied residential home.
Accordingly, the
defense of retaliatory eviction does not apply here. (RPL §223-b[6]). See also
Weil v.
Kaplan, 168 Misc 2d 68, 643 N.Y.S.2d 312 (District Court, Nassau County, First
District
1996); See also [*2]the case of Pezzolanella v
Galloway,
132 Misc 2d 429, 503 N.Y.S.2d 990 (City of Utica, Civil Court 1986) (holding that RPL
§223-b does not apply where the tenant brought a personal injury action against the
landlord
and the landlord sought to evict thereafter).
Although, this court agrees with the defendants that the eviction was likely motivated
by
retaliation, and unpersuaded by plaintiffs' claim that they wanted the space for their
mother who
"recently migrated" to New York, defendants' counterclaim sounding in Retaliatory
Eviction,
Harassment and mold must be dismissed for the reasons that ;1) the issue of harassment
and
mold were litigated and decided in defendants' favor in Housing Court, which issues are
now
res judicata (meaning it may not be re-litigated in this court or in any other court;
2) the
subject premises is exempt from Retaliatory Eviction laws, as set forth hereinabove.
Accordingly, it is
ORDERED, that Plaintiff have judgment in the amount of $10,000 against
the
defendants, jointly and severally, without interest or cost.
ORDERED, that Defendants' counterclaims are dismissed
This constitutes this Court's Decision/Order.