situation or the code compliance officer's determination that no violations existed.
Mr. O'Leary's trial testimony about the October complaint admitted the landlord's
offer to send in a plumber to make repairs after the weekend and also that he made his
own arraignments to make immediate repairs. The O'Leary retained plumber cut out the
four foot section of pipe and left it on the premises. Rather than direct his contractor to
remove the pipe, or to do so himself, Mr. O'Leary instead made a complaint to code
enforcement officers who would not issue a housing violation summons. Instead, he filed
a December 2012 complaint about the code enforcement officers refusal to act with their
supervisor, the Village Administrator. No summons were issued after the Administrator's
inspection, and his testimony clearly established that Mr. O'Leary's pipe complaint and
even his prior complaints, either were unsubstantiated or at best minor in nature and
easily and quickly corrected. It is clear that the only complaint made during the six month
window was unfounded, illegitimate, self created, self correctable and therefore not made
in "good faith".
In the absence of the presumption of retaliation, the burden now falls upon the
tenant. However, all his assorted complaints, whenever made, and the totality of said
complaints over the duration of the tenancy may be considered. In this case there were
many factors which surely influenced the landlord's decision to terminate the tenancy,
including the tenant's failure to pay rent for nine months, as well as the existence of two
civil litigations between the parties. The Court notes that retaliatory eviction is not a
defense to a non-payment proceeding. See, 390 W. End Assoc. v. Riff, 166 Misc