2d 730 (App. Term 1st Dept. 1995). However, even in a holdover proceeding the concept
of retaliatory eviction can not be used as a defense to avoid paying rent. 601 West
160 Realty Corp. v. Henry, 189 Misc 2d 352 (App. Term 2nd Dept, 11th & 13th
Dists., 2001). The nine month period of withholding rent vitiates the colorable nature of
the tenant's retaliation claim. In the absence of a clear breach of the warranty of
habitability; it would be reasonable to infer that a nine month rent strike was a justifiable
grounds to terminate a leasehold interest.
Additionally, the commencement of the rent strike appears to coincide with the
initiation of the parties litigation in both the District and Supreme Courts. The existence
of non eviction related civil litigation is not, in and of itself, an adequate basis for a
retaliatory eviction claim. See, East 145 Co. v. Benayoun, 190 Misc 2d 164
(App. Term 1st Dept. 2001); citing to Weil v. Kaplan, cite infra. Viewing the
totality of all the parties' dealings and complaints, corrections and interactions; the Court
concludes that the tenant has not met his burden of establishing the prima facie elements
of a retaliatory eviction claim.
[*5]
Accordingly, the tenant's affirmative
defense/counterclaim is dismissed. The landlord is granted an immediate judgment of
possession and a warrant of eviction.
Dated:
J.D.C.
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