with that part of the majority decision which found as a matter
of law that the commencement of this eviction proceeding was
not in retaliation for the tenant having successfully prosecuted
a personal injury action against the landlord based upon a
condition in the building. A question of fact is present which
precludes summary judgment.
Real Property Law § 223-b (1) (b) entitled ‘‘Retaliation by
landlord against tenant’’ states in relevant part that a landlord
shall not commence a proceeding to recover real property in
retaliation for actions taken in good faith by a tenant to enforce
rights under the lease or law of the State of New York regulat-
ing residential premises. The commencement of the personal
injury action against the landlord based upon a condition in
166 190 MISCELLANEOUS REPORTS, 2d SERIES
the subject building implicates a breach of the lease and sec-
tion 78 of the Multiple Dwelling Law. Whether this eviction
proceeding was brought in retaliation for commencing that ac-
tion presents a question of fact which cannot be summarily
determined. Weil v Kaplan (175 Misc 2d 482 [App Term, 2d
Dept]) is distinguishable since the statute does not apply to an
owner-occupied two-family house.
Since the statute speaks of actions or complaints by the ten-
ant, the ling of two petitions for high income rent deregula-
tion by the landlord are not within the statute. In any event,
by denition retaliation applies to actions previously taken by
the tenant against the landlord.
The order should be modied to the extent of directing a
trial on the specied issue only.
Davis and Suarez, JJ., concur; McCooe, J. P., dissents in
part in a separate memorandum.