the respondent is not in a position to prevail on this issue. At the outset, there are no allegations
or documentation that the respondent made any formal complaints to a governmental agency
regarding the conditions in his apartment. Clearly, complaints about his roommates, which,
according to the petitioner, required them to make five different changes of roommates to
accommodate the respondent, is not a rent impairing condition or one that falls within any of the
categories that characterize retaliation by the landlord. As to complaints about habitable
conditions, the petitioner claims that access to do repairs was denied. At this point it should be
noted that although complaints to a governmental agency or commencement of a proceeding by
the tenant regarding a breach of the warranty of habitability under RPL § 235 is a protected
act, breach of the warranty of habitability is not an affirmative defense to a holdover proceeding.
In addition, as acknowledged by the respondent himself, he withheld his rent which is in
direct contravention to the statute seeking such relief. (See, Reeves v. Steen, 117 Misc 2d
851 [court held that the defense of retaliatory eviction is equitable in nature and the mere
assertion of the rights does not relieve one of responsibility (to pay the rent)])
The CBHS Rules and Regulations Manual (Resp. Motion, Ex. G) on page 8 [Resident
Grievance Policy and Procedure] states in part:
CBHS will not tolerate retaliation against or unfair treatment of any resident(s) who use the
grievance procedure. The procedure should not be construed, however, in any way as preventing,
limiting, or delaying CBHS from taking action against any resident(s), up to and [*8]including discharge, relocation, and/or eviction, in circumstances