Fiondella v. 345 W. 70th Tenants Corp., 2023 NY Slip Op 03194 (2023)

The motion court properly dismissed plaintiff's claim for retaliatory eviction under Real Property Law § 223-b. Documentary evidence conclusively demonstrates that defendant's notice to cure was a response to plaintiff's own complaints, authorizing him to perform repairs that he had himself requested. Thus, no steps were taken to evict plaintiff, and defendant's actions "had a sound legal foundation" (Walentas v Johnes , 257 AD2d 352, 354 [1st Dept 1999], lv dismissed 93 NY2d 958 [1999]). Although plaintiff argues for the first time on appeal that the January 2020 so-ordered stipulation was the basis for his retaliation claim, plaintiff fails to allege facts that would warrant setting aside the stipulation (see e.g. Citibank v Rathjen , 202 AD2d 235, 235 [1st Dept 1994], lv dismissed 84 NY2d 850 [1994]).