71st St.-Lexington Corp. v. Frankel, 2026 NY Slip Op 03358 (2026)

Citation: 71st St.-Lexington Corp. v. Frankel, 2026 NY Slip Op 03358 (2026)
Parent Document: 71st St.-Lexington Corp. v. Frankel, 2026 NY Slip Op 03358 (2026)
Jurisdiction: New York (state)
Effective Date: 2026-05-28
Original Source: https://www.courtlistener.com/opinion/10866522/71st-st-lexington-corp-v-frankel/ ↗

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We agree with the motion court that defendant's retaliatory eviction defense under Real Property Law § 223-b will not lie in this action, albeit for a different reason than the one proffered by the court. It is undisputed that plaintiff served the notice of default on the heels of defendant's motion to hold plaintiff in contempt of the parties' stipulation in an earlier action, thus falling within the one-year period in which the rebuttable presumption of retaliatory intent attaches (Real Property Law § 223-b[5]). Nevertheless, given that Real Property Law § 223-b prohibits the retaliatory service of a notice to quit or the commencement of summary removal proceedings, the statute is not applicable to the facts here because defendant's right to occupy the apartment was terminated by the July 18, 2014 order of ejectment, and nothing in the statute serves to revive rights that were already terminated. Additionally, even if the presumption applied, the documentary evidence establishes that, by defendant's own admission, defendant had failed to obtain homeowner's insurance, which was a material default under the proprietary lease, which rebutted the presumption of retaliatory intent rebutted by a preponderance of the evidence (see e.g. Fiondella v 345 W. 70th Tenants Corp., 217 AD3d 495, 495-496 [1st Dept 2023]).

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