Landlord & Tenant

Tenant then brought this federal action alleging Fair Housing Act violations. The court dismissed several of the claims on the pleadings, and landlord moved for summary judgment on the claims that survived dismissal. With respect to tenant's claim of discrimination based on her race and disability, the court acknowledged that tenant had made out a prima facie case by demonstrating that she was African American, she was qualified to pay the rent, and she was denied the apartment. But the court then noted that landlord had adequately rebutted the prima facie case with evidence that tenant had failed to co-operate during each lease renewal process, and refused to pay modest rent increases, and had demonstrated bellicose and abusive behavior towards staff. Moreover, landlord had demonstrated that a downstairs tenant had agreed to renew his lease only if landlord agreed to evict plaintiff tenant because of noise in her apartment. Plaintiff tenant offered only conclusory and unsupported assertions in response.

With respect to tenant's claim of retaliatory eviction, the court noted that to succeed, a tenant must establish that tenant engaged in protected activity, that landlord took adverse action against the tenant, and that a causal connection exists between the protected activity and the adverse action. In this case, the court held that tenant could establish no causal connection because tenant did not assert a Fair Housing Act claim until after landlord evicted tenant. Tenant had not asserted any discrimination claim in the state court proceedings. Instead, the eviction preceded any protected action by tenant, making it impossible for landlord to establish that causal connection.

Comment

When a plaintiff presents some evidence of retaliation for assertion of a right under the Fair Housing Act (FHA), a one-year gap between the protected activity and an adverse action is not sufficient to entitle a defendant to a summary judgment. Thus, in Regional Economic Community Action Program, Inc. (RECAP) v. City of Middletown, 294 F.3d 35, 41–44, 53–55, the Second Circuit vacated a grant of summary judgment for defendant city in an FHA retaliation action where, in December 1994, a non-profit threatened suit and filed a HUD complaint against the city for denying the non-profit a critical building permit, and in early 1996, the city reneged on a pre-existing funding commitment to the nonprofit. The court concluded that the time gap was not sufficient o entitle the city to summary judgment in light of the city's attorney's comments, made after the non-profit's legal threat, that “had [the non-profit] not pursued legal action against the Mayor, he would be much more cooperative” and that the non-profit “has to learn not to bite the hand that feeds it.” RECAP, 294 F.3d at 43–44, 54.

Even without concrete evidence of retaliatory animus, a two-month gap between a protected activity and an adverse action, on the other hand, is sufficiently close in time to defeat a motion to dismiss a federal retaliation claim. For example, in Ponce v. 480 East 21st Street, LLC, 2013 WL 4543622, the Eastern District denied a landlord's motion to dismiss a tenant's FHA retaliatory eviction claim where the tenant filed a sexual harassment complaint with police against her building's superintendent in November and her landlord, aware of the complaint, refused to renew her lease the following January. The court found that, even without alleging additional evidence of retaliatory animus, the tenant stated a causal connection between her complaint and the landlord's refusal to renew her lease.

Beyond the FHA, section 223-b(5) of New York's Landlord Tenant Law) creates a rebuttable presumption of retaliation for evictions commenced within six months of a tenant's protected activity. The presumption may not arise, however, when tenant raises retaliation in an affirmative claim rather than as a defense to eviction. See, 601 W. 160 Realty Corp. v. Henry, 189 Misc.2d 352, 353-54 (court affirmed a damages judgment on tenant's §223-b(3) retaliatory eviction counterclaim, but noted, in dictum, that §223(b)(5)'s presumption of retaliation did not apply).

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Failure of Consideration a Defense In Action Against Tenant's Guarantor

Moon 170 Mercer, Inc. v. Vella NYLJ 2/21/19, p. 23, col. 6 AppDiv, First Dept. (memorandum opinion)

In landlord's action against tenant's guarantor, guarantor appealed from Supreme Court's grant of landlord's summary judgment motion. The Appellate Division reversed, holding that guarantor had raised questions of fact about a defense based on failure of consideration.

In a related action, the Appellate Division had reinstated tenant's claim against landlord for wrongful eviction. In the current case, the Appellate Division observed that failure of consideration remains a defense available to the guarantor of a tenant's lease obligations, even if the guaranty purports to be unconditional. In remanding, the Appellate Division held that the guarantor should be afforded an opportunity to establish whether the facts and circumstances surrounding the alleged wrongful eviction prevented him from exercising his rights under the guaranty, and the extent to which those facts and circumstances bear on the amount of post-eviction rent due under the guaranty.