Martens v O'Leary (2013 NY Slip Op 50991(U))
[*1]
Martens v O'Leary
2013 NY Slip Op 50991(U) [40 Misc 3d 1201(A)]
Decided on June 24, 2013
District Court Of Suffolk County, Third District
Hackeling, J.
Published by New York State Law Reporting
Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be
published in the printed Official Reports.
Decided on June 24, 2013
District Court of Suffolk County, Third
District
Hilde Martens,
Petitioner,
against
Richard O'Leary, Respondent.
HULT 175-13
C. Stephen Hackeling, J.
Pursuant to the provisions of the New York RPAPL Sec. 711(1),
Hilde Martens, the above captioned petitioner/landlord (hereafter "landlord or Ms.
Martens"), commenced this holdover eviction proceeding against the respondent/tenant
Richard O'Leary (hereafter " tenant or Mr. O'Leary") via petition dated April 1, 2013.
The tenant moved to dismiss the petition pursuant to Sec. 741 of the New York RPAPL
and Sec. 223(b) of the New York RPL. The Sec. 741 challenge asserting the
insufficiency of the language of the petition was cured by the filing of an amended
petition. A trial of the matter was conducted on May 30, 2013, with the parties
stipulating that the sole legal controversy to be adjudicated involved the tenant's assertion
of the affirmative defense/counterclaim of "retaliatory eviction" as defined in Sec. 223-b
of the New York Real Property Law.
The Facts
The undisputed relevant facts established at trial are that Mr. O'Leary is a custodian
at a local high school and has been a tenant at 76 Bayview Ave., Northport, New York
for over 28 years. For 26 years until 2011, Mr. O'Leary harmoniously occupied a studio
type apartment which did not have a kitchen but did have a bathroom. Mr. O'Leary's