Markese v. Cooper

• Decision Date: 19 May 1972
• Citation: 333 N.Y.S.2d 63,70 Misc.2d 478
• Parties: Ronald J. MARKESE, Landlord-Petitioner v. Jadine COOPER, Tenant-Respondent.
• Court: New York County Court

Page 63

333 N.Y.S.2d 63

70 Misc.2d 478

Ronald J. MARKESE, Landlord-Petitioner v. Jadine COOPER, Tenant-Respondent.

Monroe County Court.

May 19, 1972.

Robinson, Williams, Robinson & Angeloff, Rochester (Frank A. Aloi, Rochester, of counsel), for landlord-petitioner.

Michael Nelson, Rochester, for respondent.

DECISION

DAVID O. BOEHM, Judge.

The tenant appeals from the dismissal of her affirmative defense by the Rochester City Court and the granting of a warrant of eviction and judgment in the landlord's action to dispossess the tenant as a holdover. The tenant concedes that the required 30-day notice to vacate was duly and properly given and her answer sets forth that she has occupied the premises pursuant to an oral month to month tenancy since September, 1968.

This three year period of uninterrupted and apparently acceptable occupancy becomes relevant in view of the tenant's claim that she is being evicted in retaliation for reporting a number of serious violations of the Rochester Property Conservation Code, to wit: vermin and rodent infestation; lack of heat because of the furnace's failure to operate; peeling lead paint from walls and trim in the livingroom, kitchen and bedrooms; flooded cellar because of a leaking pipe; windows rotted and broken through; deteriorated front steps.

Paragraphs '7' and '8' of the tenant's answer state that she asked the landlord to remedy these hazards for a year and, because of his adamant refusal to repair, she finally was obliged to register complaints with the Rochester Building Bureau and Code enforcement divisions. After inspection, the property was cited for violations of the Property Rehabilitation and Conservation Code. Thereafter these eviction proceedings were brought.

Pending the determination of the appeal, execution of the lower court's warrant of eviction has been stayed and rent is being paid to the landlord's attorney, in escrow.

The tenant's affirmative defense is summed up in paragraph '11' of her answer:

'. . . (T)hat the Petitioner is attempting to evict the Respondent from the aforementioned premises in retaliation of the Respondent's exercise of her constitutional rights to petition her government for redress of grievanses, all in violation of Respondent's rights as guaranteed by the Constitution of the United States, Amendments I and XIV and the United States Constitution Article I, Sections 8 and 9.'

'Retaliatory eviction' is the nomenclature that has developed to define the action of a landlord who evicts his tenant because of the tenant's reporting of housing code violations to the public authorities. It might have been called anything; 'vengeful eviction' or, simply, 'getting even'. Essentially, it comes down to the control over the property which the landlord claims to reserve to himself not only to let and re-let, but to immunize it from disclosure of housing violations.

The usual position of the landlord is that he has the right to evict a holdover tenant for any reason, or, for no reason, because this is a right which the common law has created on his behalf and this right has been nurtured and protected for so many years that it has become ineluctably embedded in the law and may not be changed except by legislation.

The defense of retaliatory eviction to a holdover summary proceeding was not available at common law. However, co-existing with that historical fact, is the recurring admonition of the Court of Appeals that the common law of the state is to be kept abreast of the needs and requirements of the age. In Gallagher v. St. Raymond's R. C. Church, 21 N.Y.2d 554, 558, 289 N.Y.S.2d 401, 404, 236 N.E.2d 632, 634, the court said:

'. . . (W)e recognize that the common law of this State is not an anachronism, but is a living law which responds to the surging reality of changed conditions.'

(see also, Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 508--509, 293 N.Y.S.2d 305, 312--313, 239 N.E.2d 897, 902--903; Town of Brookhaven, etc. v. Smith, 188 N.Y. 74, 78, 80 N.E. 665, 666; Greenberg v. Lorenz, 9 N.Y.2d 195, 213 N.Y.S.2d 39, 173 N.E.2d 773).

In point of fact, the summary eviction proceeding was not available either at common law. Prior to 1820, the only legal remedy available to a landlord was an action in ejectment, a drawn-out and expensive proceeding. To enable the landlord to regain his property quickly and inexpensively, the legislature enacted the mechanism for eviction by summary proceeding (Laws 1820, chap. 194, sec. 3; see also, 3 N.Y.Law of Landlord and Tenant, § 1097).

Because the summary eviction proceeding is in derogation of the common law, it must be strictly construed against the landlord (Flewellen v. Lent, 91 App.Div. 430, 432, 86 N.Y.S. 919, 920).

The right to dispossess a holdover tenant is found in section 711, subd. 1, of the Real Property Actions and Proceedings Law, which is itself subject to the provisions of sections 228, 232--a and 232--b of the Real Property Law requiring a 30-day notice to quit as a prerequisite to such a proceeding.

The essence of the defenses available to a tenant is the right to possession of the demised premises. The defense of 'retaliatory eviction' is not, however, based on the tenant's right to possession, per se, but rather seeks to deny possession to the landlord because of his tainted motive in evicting the tenant.

The landlord's position is that the tenant may not assert such a defense for a number of reasons, including the necessity for prior legislative approval; lack of jurisdiction of the court to entertain the defense; and existing statutory remedies which have pre-empted any other relief. With respect to the last argument, the landlord calls attention to the Real Property Actions and Proceedings Law, section 755; Social Services Law, section by 143--b; Multiple Residence Law, section 305--a; and Civil Rights Law, sections 18--b and 18--c.

With the exception of the Civil Rights Law, the statutes cited by the landlord prohibit a landlord from evicting a tenant for non-payment of rent if there are existing housing code violations. The Civil Rights Law is not applicable. The sole purpose of the sections cited is to make it unlawful for a publicly assisted housing accommodation to discriminate against anyone by reason of race, color, religion, national origin or ancestry.

However, what the landlord overlooks is that the existing legislative scheme to protect tenants from eviction where there are existing housing violations is only operative when the tenant is being evicted for non-payment of rent. This gap enables the landlord to waive any claim to back rent and dispossess the tenant via a holdover summary proceeding. He thereby avoids the consequences of section 755, subd. 1, pars. (a) and (b) of the Real Property Actions and Proceedings Law, section 305--a, subd. 3 of the Multiple Residence Law and section 143--b of the Social Services Law.

Except for the traditional defenses to a holdover proceeding, the tenant's position is thereby rendered hopeless. The effect of the landlord's action is to frustrate the strong public policy of maintaining decent habitation in New York State and the policing and enforcement of such policy.

It is in the state's as well as the tenant's interest to recognize a defense which has the effect of penalizing a landlord for improperly attempting to side-step the law. This would presuppose, of course, that the tenant, prior to the eviction proceedings against him, had reported the housing violations, something he is similarly required to do under section 755, subd. 1, par. (a) of the Real Property Actions and Proceedings Law and section 305--a, subd. 3, par. (a) of the Multiple Residence Law. It would, of course, also presuppose that the tenant was not himself responsible for the violations.

It is apparent that without such a defense, regardless of how it is labelled, the threat of eviction would coerce the most justifiable complaints into a submissive silence. A landlord could, with impunity, continue to rent a dwelling containing the most flagrant and reprehensible housing violations and the elaborate legislative scheme to ensure compliance with the housing laws would thus be circumvented.

As the court stated in 176 East 123rd Street Corp. v. Flores, 65 Misc.2d 130, 134--135, 317 N.Y.S.2d 150, 155:

'(S)ection 755 of the Real Property Actions and Proceedings Law and its predecessor statutes were not designed to give tenants any new substantive rights . . . but to force landlords to comply with applicable housing laws.'

There arises also the concomitant question of whether a court should, by its decree, give legal sanction to an attempt to penalize someone for reporting a violation of the law. The question almost bespeaks the answer, particularly in light of the state's declared public policy regarding decent, safe housing and a consideration of the alternatives available to the tenant.

The trauma of eviction might be reduced somewhat if one were confident of other housing for one's family. However, in light of the tightness of the low-income housing market, a Laissez-faire indifference would have pernicious and deleterious results which would be directly contrary to the expressed state policy (see Dept. of Housing and Urban Development report, 'Analysis of the Rochester, New York, Housing Market', Nov. 1968; Rochester Times-Union, 'Substandard Housing Level Said Constant' p. 3A, 1/29/72).

To realize the important purpose behind the state's policy on housing, one need only refer to the 1952 Report of the Joint Legislative Committee on Housing and Multiple Dwellings (McKinney's Consol. Laws of New York, Book 35--B, Multiple Residence Law, p. ix) and Assemblyman Michell's 'Historical Development of the Multiple Dwelling Law' written in 1946 when the old Multiple Dwelling Law was amended in its entirety (McKinney's Consol.Laws of New York, Book 35--A, Multiple Dwelling Law, p. ix).

For the legislative findings,...