Portnoy v. Hill
| Decision Date | 10 October 1968 |
| Citation | 57 Misc.2d 1097,294 N.Y.S.2d 278 |
| Parties | Lillian PORTNOY, Petitioner, v. Sandra HILL, Respondent. |
| Court | New York City Court |
This action for summary proceedings was commenced by the Petitioner, Lillian Portnoy, the owner and landlord of 72 Susquehanna Street, Binghamton, New York. The Respondent in the action is Sandra Hill, an occupant of the Susquehanna Street premises, and referred to as the Tenant. Similar proceedings have been instituted against two other tenants, Bonnie Monta and Lily Bradley, but by means of a stipulation have been consolidated with the action now before this Court.
The landlord bases her action on the fact that she gave the tenant the required statutory thirty day notice, (Sec. 232--b Real Property Law) and consequently is entitled to an order of eviction. The tenant, on the other hand, takes the position that this is merely a retaliatory tactic on the part of the landlord to obtain her eviction for reporting alleged violations of the Housing, Property Maintenance, and Rehabilitation Code of the City of Binghamton, commonly called the Housing Code. The tenant further alleges in her answer to the petition that such retaliation is a complete defense to the landlord's action and that she should have an opportunity to prove it at a trial. This, as far as the Court can ascertain, is a case of first impression in the State of New York and thus presents a unique question. To fully comprehend the matter it would seem best to briefly review the proceedings had heretofore involving the very same parties.
On June 21, 1968 the landlord filed a petition for summary proceedings in City Court. The basis of this petition was that the tenant had failed to pay the rent and the landlord was therefore asking for her eviction. On the return date, the tenant, through her attorney, admitted that the rent had not been paid and that she and the other two tenants were participating in a so-called 'rent strike'. At that time she sought, through her attorney, to interpose an affirmative defense, i.e. 'illegality of the lease'. The crux of this alleged defense, and what the tenant's attorney wanted to prove at a trial was that the premises, at the time the action was commenced, as opposed to when the landlord-tenant relationship was created, were not in compliance with the Housing Code. It was his contention that both the landlord and the tenant, as parties to an illegal lease, should be left where they were found. The Court was of the opinion that this could settle nothing. The tenant would be living there free and the premises would never be brought into compliance, if indeed they were not in compliance. It was further felt that the tenant had not exhausted her remedies under the Housing Code, wherein a procedure was set up for an enforcement officer to inspect the dwelling in question, and where violations were found and not corrected, substantial penalties could be imposed against the landlord until, or unless, the properties in question were brought into compliance. For these reasons, the opportunity to offer this proof at a trial was denied and the warrant of eviction was issued.
A stay of this warrant was obtained from the Broome County Court and an appeal was taken. Subsequently, on August 29, 1968 the Broome County Court affirmed the lower Court's ruling, and this ruling is now on appeal to the Appellate Division. With this background in mind we proceed.
No reported case in the State of New York could be found where the defense of retaliation was ever interposed or, in fact, offered. However, the United States Court of Appeals for the ...
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