Toms Point Apartments v. Goudzward

CourtNew York District Court
Writing for the CourtRALPH DIAMOND
Citation339 N.Y.S.2d 281,72 Misc.2d 629
Decision Date05 December 1972
PartiesTOMS POINT APARTMENTS, Petitioner-Landlord, v. Jeanette GOUDZWARD, Respondent-Tenant.

Page 281

339 N.Y.S.2d 281
72 Misc.2d 629
TOMS POINT APARTMENTS, Petitioner-Landlord,
v.
Jeanette GOUDZWARD, Respondent-Tenant.
District Court, Nassau County, Third District, Great Neck Part.
Dec. 5, 1972.

Page 283

Zimmer, Fishback, Hertan & Haberman, Melville, for petitioner.

Jeanette Goudzward, respondent in person.

DECISION AFTER TRIAL

RALPH DIAMOND, Judge.

This is a holdover proceeding in which the landlord-petitioner seeks possession of the demised premises. The tenant's defense is retaliatory eviction.

The basic facts are not in dispute. The parties entered into a lease on August 17, 1966, for a two-year period commencing September 1, 1966. The lease was renewed twice, each time for a two-year period. The last renewal expired August 31, 1972.

In October, 1971, the tenant invited a group of fellow tenants to meet in her apartment to consider the possibility of forming a tenant's organization to deal with the landlord with respect to several grievances.

In April, 1972, and again in June, 1972, the tenant was advised that her lease would not be further renewed. Despite notice tenant failed to vacate the premises. On the 5th day of October, 1972, this proceeding was begun.

At the trial, the tenant raised the affirmative defense of 'retaliatory eviction'. She claimed that the landlord's refusal to renew her lease was solely in retaliation for her actions with her fellow tenants in opposing the landlord. The landlord contends that the tenant has failed to sustain the burden of proof required and, further, that the defense of retaliatory eviction does not apply in this case.

Tenant seeks to dismiss the action and have the Court order the landlord to renew the lease on terms equal to those offered other tenants.

The Court has before it the question whether a landlord has the right to pick his tenants and refuse to renew the tenancy of a [72 Misc.2d 630] person he finds undesirable for any reason, or whether that right is affected by the defense of retaliatory eviction.

The defense of retaliatory eviction in New York State is a comparatively new one. Retaliatory eviction has been defined in many ways.

Page 284

In Markese v. Cooper, 70 Misc.2d 478, 333 N.Y.S.2d 63, the Court stated that 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 a housing code violation. The Court in that case went on to say that it might have been called anything, 'vengeful eviction' or, simply, 'getting even'. The Court in Hosey v. Club Van Cortlandt, D.C., 299 F.Supp. 501, described retaliatory eviction as an act by a landlord evicting a tenant when the overriding reason was to retaliate against the tenant for exercising his constitutional right.

The defense of retaliatory eviction in a holdover proceeding was not available at common law, nor do we in New York have any statutes specifically prohibiting retaliatory eviction. A few states have recently enacted such statutes. Illinois has declared it to be against public policy for a landlord to 'terminate or refuse to renew a lease or tenancy of property used as a residence on the ground that the tenant has complained to any government authority of a bona fide violation of any applicable building code, health ordinance, or similar regulation.' Ill. S.H.A. ch. 80, § 71 (1963). Rhode Island and Michigan allow a tenant-defendant, in an action based upon termination of a lease, to interpose the defense that the alleged termination was intended as a penalty for the tenant reporting a violation of any health or safety code, or any ordinance. Maryland has provided that retaliatory action will be stayed for a period of six months after a tenant has reported a major defect in the premises. California's new Civil Code Section 1942.5 states that a landlord, whose dominant purpose is retaliation against a lessee for complaining to a government agency or for exercising other rights, 'may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services, within 60 days'. New Jersey provides for criminal punishment of any landlord who takes reprisals against a tenant for reporting violations of any health or building code. See: Legal Problems of Landlord & Tenant, University of California Law Review vol. 3,...

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17 practice notes
  • Mobil Oil Corp. v. Rubenfeld
    • United States
    • New York Supreme Court — Appellate Division
    • July 7, 1975
    ...Portnoy v. Hill, 57 Misc.2d 1097, 294 N.Y.S.2d 278; Markese v. Cooper, 70 Misc.2d 478, 333 N.Y.S.2d 63; Toms Point Apts. v. Goudzward, 72 Misc.2d 629, 339 N.Y.S.2d 281, affd. 79 Misc.2d 206, 360 N.Y.S.2d 366; Cornell v. Dimmick, 73 Misc.2d 384, 342 N.Y.S.2d 275). So far, the defense has not......
  • Imperial Colliery Co. v. Fout, No. 17428
    • United States
    • Supreme Court of West Virginia
    • September 16, 1988
    ...615 (Ch.Div.1970); E. & E. Newman, Inc. v. Hallock, 116 N.J.Super. 220, 281 A.2d 544 (App.Div.1971); Toms Point Apartments v. Goudzward, 72 Misc.2d 629, 339 N.Y.S.2d 281 (1972), aff'd, 79 Misc.2d 206, 360 N.Y.S.2d 366 (1973); Portnoy v. Hill, 57 Misc.2d 1097, 294 N.Y.S.2d 278 (1968); Powell......
  • 650 Park Ave. Corp. v. McRae, No. 86 Civ. 4047 (RLC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 22, 1987
    ...facts and law than those at issue in a simple possessory action at the conclusion of a lease term. Toms Point Apartments v. Goudzward, 72 Misc.2d 629, 339 N.Y.S.2d 281, 285 (Dist.Ct. Nassau County 1972), aff'd, 79 Misc.2d 206, 360 N.Y.S.2d 366 (App.Term 2d Dep't 1973) (holdover tenancy "is ......
  • Rossow Oil Co., Inc. v. Heiman, No. 75--35
    • United States
    • United States State Supreme Court of Wisconsin
    • June 2, 1976
    ...184 So.2d 196; Janofsky v. Garland (1941), 42 Cal.App.2d 655, 109 P.2d 750; contra, Toms Point Apartments v. Goudzward (1972), 72 Misc.2d 629, 339 N.Y.S.2d 281, aff'd (1973), 79 Misc.2d 206, 360 N.Y.S.2d 366; Hour Publishing Co. v. Gorez (1968), 5 Conn.Cir. 419, 254 A.2d Just as other court......
  • Request a trial to view additional results
17 cases
  • Mobil Oil Corp. v. Rubenfeld
    • United States
    • New York Supreme Court — Appellate Division
    • July 7, 1975
    ...Portnoy v. Hill, 57 Misc.2d 1097, 294 N.Y.S.2d 278; Markese v. Cooper, 70 Misc.2d 478, 333 N.Y.S.2d 63; Toms Point Apts. v. Goudzward, 72 Misc.2d 629, 339 N.Y.S.2d 281, affd. 79 Misc.2d 206, 360 N.Y.S.2d 366; Cornell v. Dimmick, 73 Misc.2d 384, 342 N.Y.S.2d 275). So far, the defense has not......
  • Imperial Colliery Co. v. Fout, No. 17428
    • United States
    • Supreme Court of West Virginia
    • September 16, 1988
    ...615 (Ch.Div.1970); E. & E. Newman, Inc. v. Hallock, 116 N.J.Super. 220, 281 A.2d 544 (App.Div.1971); Toms Point Apartments v. Goudzward, 72 Misc.2d 629, 339 N.Y.S.2d 281 (1972), aff'd, 79 Misc.2d 206, 360 N.Y.S.2d 366 (1973); Portnoy v. Hill, 57 Misc.2d 1097, 294 N.Y.S.2d 278 (1968); Powell......
  • 650 Park Ave. Corp. v. McRae, No. 86 Civ. 4047 (RLC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 22, 1987
    ...facts and law than those at issue in a simple possessory action at the conclusion of a lease term. Toms Point Apartments v. Goudzward, 72 Misc.2d 629, 339 N.Y.S.2d 281, 285 (Dist.Ct. Nassau County 1972), aff'd, 79 Misc.2d 206, 360 N.Y.S.2d 366 (App.Term 2d Dep't 1973) (holdover tenancy "is ......
  • Rossow Oil Co., Inc. v. Heiman, No. 75--35
    • United States
    • United States State Supreme Court of Wisconsin
    • June 2, 1976
    ...184 So.2d 196; Janofsky v. Garland (1941), 42 Cal.App.2d 655, 109 P.2d 750; contra, Toms Point Apartments v. Goudzward (1972), 72 Misc.2d 629, 339 N.Y.S.2d 281, aff'd (1973), 79 Misc.2d 206, 360 N.Y.S.2d 366; Hour Publishing Co. v. Gorez (1968), 5 Conn.Cir. 419, 254 A.2d Just as other court......
  • Request a trial to view additional results

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