finds that respondent has failed to establish that petitioner's actions were retaliatory. RPL §
223-b(5) provides for a rebuttable presumption that a landlord is acting in retaliation if the tenant
establishes that the landlord served a notice to quit, or institutes an action or proceeding to
recover possession, within one year after a good faith complaint was made. In the case at bar, the
notice to terminate issued by petitioner upon which the instant action is based, although
defective, was dated February 20, 2020 which was before respondent filed his two complaints
[*5]with the DHCR on March 15, 2020. Moreover, respondent
failed to allege any facts that petitioner's notice to terminate was in retaliation to respondent
asserting his rights with regard to warranty of habitability claims under RPL § 235(b) or his
claims regarding overcharges under the ETPA regulations. See Barr v Huggins, 41 Misc 3d 605 (Civ Ct Bronx Cty 2013).
Respondent's affidavit is devoid of any specific factual allegations regarding the alleged warranty
of habitability claims or rent overcharges, other than those generally referencing the complaints
filed with the DHCR. As such, the Court finds that petitioner's initiating action to terminate the
tenancy, that being the service of the notice to terminate, predated the respondent's complaints
and the statutory presumption of retaliation does not apply. Accordingly, the respondent failed to
establish petitioner's actions were in retaliation for respondent's filed complaints and therefore, is
not entitled to attorney's fees under RPL § 223-b(3).
This constitutes the Decision and Order of this Court.
The Court considered the following papers on this motion: Notice of Motion to Dismiss and