Weil v. Kaplan

• Decision Date: 27 October 1997
• Citation: 670 N.Y.S.2d 666,175 Misc.2d 482
• Parties: , 1998 N.Y. Slip Op. 98,114 Al WEIL, Also Known as Alvin P. Weil, Appellant-Respondent, v. Charles KAPLAN et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Term

Page 666

670 N.Y.S.2d 666

175 Misc.2d 482, 1998 N.Y. Slip Op. 98,114

Al WEIL, Also Known as Alvin P. Weil, Appellant-Respondent, v. Charles KAPLAN et al., Respondents-Appellants.

Supreme Court, Appellate Term Second Department.

Oct. 27, 1997.

Bruce R. Bekritsky, Mineola, for appellants-respondents.

Hahn, Ford & Hundertmark, Williston Park (J. Randolph Hundertmark, of counsel), for respondents-appellants.

Before DiPAOLA, P.J., and COLLINS and INGRASSIA, JJ.

MEMORANDUM.

Final judgment unanimously affirmed without costs.

In this holdover proceeding, landlord seeks to recover possession of the upstairs apartment of a two-family house. Respondent Kaplan is a month-to-month tenant. Respondent Creagh is an undertenant of Kaplan. Landlord resides in the downstairs apartment.

Respondents' answer asserted three "counterclaims". It asserted first that the proceeding was brought in retaliation for Kaplan's commencement of a Supreme Court action against landlord to recover damages for personal injuries that Kaplan suffered when the stove in the apartment exploded. It further asserted that landlord had at various times subsequent to Kaplan's commencement of the personal-injuries action turned off the heat, hot water and electricity. Finally, the answer asserted the existence of certain code violations including, inter alia, that a key to the door lock was needed for egress and that landlord's operation of a business in the basement gave rise to a fire hazard.

After submitting a reply, landlord moved to dismiss or sever the counterclaims. In support of his motion, landlord argued, inter alia, that Kaplan's institution of civil litigation did not provide a basis for a claim of retaliatory eviction (citing, Pezzolanella v. Galloway, 132 Misc.2d 429, 503 N.Y.S.2d 990) and that the retaliatory-eviction statute is by its terms inapplicable to owner-occupied dwellings with fewer than four residential units (RPL 223-b[6] ). Landlord also argued that the counterclaim based on the alleged deprivation of heat, hot water and electricity should be dismissed or severed because landlord was not seeking to recover rent or damages. Finally, landlord argued respondents have no standing to impose municipal code violations.

In opposition to the motion to dismiss, tenants contended, inter alia, that RPL 223-b is not the exclusive source of the retaliatory-eviction claim; that it existed in the case law prior to the enactment of the statute (see, e.g., Toms Point Apts. v. Goudzward, 72 Misc.2d 629, 339 N.Y.S.2d 281 and cases cited therein; Edwards v. Habib, 397 F.2d 687); and that the case-law claim continues to co-exist with the statutory claim.

The court below ruled that the retaliatory-eviction statute should be strictly construed and that it does not allow for the maintenance of the claim in this case. Accordingly, it dismissed the counterclaim for retaliatory-eviction. It also severed the counterclaim for lack of heat, hot water, and electricity on the ground that this claim was unrelated to landlord's claim for possession. Finally, it dismissed the counterclaim alleging code violations on the ground that tenants lacked standing to impose such violations.

When the matter came on for trial, landlord orally moved for summary judgment on the ground that there were no triable issues of fact remaining. This motion was granted. Landlord also sought a hearing on the fair value of use and occupancy but the court denied...