FIONDELLA v. 345 WEST 70TH TENANTS CORP (2023)

Order, Supreme Court, New York County (David B. Cohen, J.), entered August 2, 2021, which, to the extent appealed from as limited by the briefs, granted defendant's motion to dismiss plaintiff's claims for retaliation under Real Property Law § 223–b, breach of the warranty of habitability, and attorneys’ fees, unanimously modified, on the law, to deny the motion to dismiss the claim for breach of the warranty of habitability for the period that plaintiff occupied the apartment after the execution of the parties’ January 2020 so-ordered stipulation, and the claim for attorneys’ fees, and otherwise affirmed, without costs.

The motion court properly dismissed plaintiff's claim for retaliatory eviction under Real Property Law § 223–b.  Documentary evidence conclusively demonstrates that defendant's notice to cure was a response to plaintiff's own complaints, authorizing him to perform repairs that he had himself requested.  Thus, no steps were taken to evict plaintiff, and defendant's actions “had a sound legal foundation” (Walentas v. Johnes, 257 A.D.2d 352, 354, 683 N.Y.S.2d 56 [1st Dept. 1999], lv dismissed 93 N.Y.2d 958, 694 N.Y.S.2d 635, 716 N.E.2d 700 [1999]).  Although plaintiff argues for the first time on appeal that the January 2020 so-ordered stipulation was the basis for his retaliation claim, plaintiff fails to allege facts that would warrant setting aside the stipulation (see e.g. Citibank v. Rathjen, 202 A.D.2d 235, 235, 608 N.Y.S.2d 453 [1st Dept. 1994], lv dismissed 84 N.Y.2d 850, 617 N.Y.S.2d 139, 641 N.E.2d 160 [1994]).

We modify, however, to reinstate the portion of plaintiff's claim for breach of the warranty of habitability solely for the period following the execution of the January 2020 so-ordered stipulation during which plaintiff lived in the apartment while the alleged structural defects in the apartment persisted and defendant allegedly failed to remedy them.  The class B violation issued by the New York City Department of Housing Preservation and Development is prima facie evidence that the conditions set forth in the violation constitute a hazard to life, health, or safety (see e.g. Park W. Mgt. Corp. v. Mitchell, 47 N.Y.2d 316, 327, 418 N.Y.S.2d 310, 391 N.E.2d 1288 [1979], cert denied 444 U.S. 992, 100 S.Ct. 523, 62 L.Ed.2d 421 [1979]).  Although defendant maintains that parties may settle claims for breach of the warranty of habitability prospectively, the January 2020 settlement stipulation does not conclusively show that the parties prospectively settled that claim (cf.  Leventritt v. 520 E. 86th St., Inc., 266 A.D.2d 45, 698 N.Y.S.2d 20 [1st Dept. 1999], lv denied 94 N.Y.2d 760, 706 N.Y.S.2d 80, 727 N.E.2d 577 [2000]).  Because plaintiff's claim for attorneys’ fees under the proprietary lease, as applied reciprocally under Real Property Law § 234, was dismissed based on the lack of a predicate cause of action after the dismissal of plaintiff's substantive claims, we also find that plaintiff's request for attorneys’ fees should be reinstated.