Appeal from a decision of the Civil Court of the City of New York, Queens County (Margaret P. McGowan, J.), dated December 29, 2003, deemed (see CPLR 5520 [c]) an appeal from a final judgment entered on December 30, 2003. The final judgment, after a nonjury trial, insofar as appealed from, awarded landlord possession as against Grazyna Pancerz.

Final judgment, insofar as appealed from, unanimously reversed without costs and matter remanded to the court below for a new trial as against Grazyna Pancerz.

In August 2003, landlord commenced the instant holdover proceeding seeking to recover possession of the subject premises pursuant to Rent Stabilization Code (9 NYCRR) § 2524.4 (a) (1), which provides that an owner may refuse to renew a lease to a rent-stabilized tenant when the owner seeks to recover possession of an apartment for the owner's personal use as a primary residence or for the use of a family member. Tenant Grazyna Pancerz asserted several defenses to the proceeding, including the defense of retaliatory eviction.

The burden was upon landlord to establish that he had a genuine intention to occupy the apartment as his primary residence (Nestor v Britt, 213 AD2d 255 [1995]; Chan v Adossa, 195 Misc 2d 590, 595 [App Term, 2d & 11th Jud Dists 2003]; Buffa v Radondic, NYLJ, June 27, 2001 [App Term, 2d & 11th Jud Dists]; Tamay v Perez, NYLJ, Nov. 21, 1980 [App [*2]Term, 2d & 11th Jud Dists]). The question of whether landlord had such a genuine intention to occupy the apartment as his primary residence necessarily involved issues of credibility to be determined by the trier of fact (Chan v Adossa, 195 Misc 2d at 595; Wiertciak v Krol, 2003 NY Slip Op 50807[U] [App Term, 2d & 11th Jud Dists]).

In the instant case, landlord testified that he had problems with his knees when he walked up stairs and that he served tenant with a notice of non-renewal in order to live in the subject first-floor apartment. Landlord further testified that there were two apartments on each floor of the eight-unit building, and that all of the apartments were identical "dimension wise." On cross-examination, landlord admitted that there was another apartment available on the first floor in February 2003, which was just prior to landlord's issuance of the non-renewal notice on March 3, 2003. The court below properly recognized that evidence that another apartment was available does not necessarily establish a lack of good faith (see Matter of Rosenbluth v Finkelstein, 300 NY 402, 405 [1950]; Wiertciak v Krol, 2003 NY Slip Op 50807[U], supra; Parkash v Barnes, NYLJ, May 11, 1989 [App Term, 2d & 11th Jud Dists]), although it is a relevant factor to be considered in determining whether landlord had a genuine intention to occupy the apartment as his primary residence.

The record indicates, however, that the court limited the development of testimony pertaining to tenant's defense of retaliatory eviction (see Toms Point Apts. v Goudzward, 79 Misc 2d 206 [App Term, 9th & 10th Jud Dists 1972], affg 72 Misc 2d 629 [1973]). Real Property Law § 223-b (1) (a) prohibits a landlord from instituting summary proceedings in retaliation for a tenant's "good faith complaint . . . to a governmental authority of the landlord's alleged violation of any health or safety law, regulation, code, or ordinance, or any law or regulation which has as its objective the regulation of premises used for dwelling purposes," and a rebuttable presumption of retaliatory eviction may be established upon proof that the summary proceeding was commenced within six months after such a good faith complaint is made (Real Property Law § 223-b [5] [a]).

At trial, there was testimony to the effect that tenant had filed several complaints with the New York State Division of Housing and Community Renewal (DHCR) in 1999, and that landlord had issued the subject lease, which terminated in July 2003, under compulsion of, inter alia, a court order obtained by tenant. Inasmuch as landlord's entitlement to exercise his rights pursuant to 9 NYCRR 2524.4 (a) (1) is expressly predicated upon termination of the lease for the premises sought to be recovered for the landlord's personal use, and in consideration of the fact that the instant proceeding was instituted less than one month after the termination of the court-ordered lease, this trial testimony was relevant to tenant's defense of retaliatory eviction. The trial court, however, set a one-year limitation on this testimony, thereby curtailing the full development of this and other testimony bearing upon tenant's defense of retaliatory eviction. It is noted in this regard that while the tenant's proof did not give rise to the statutory presumption of retaliatory eviction (see Real Property Law § 223-b [5] [a]), tenant was nevertheless entitled to present proof to establish the defense of retaliatory eviction, including, but not limited to, complaints filed by her with DHCR in 1999 (see e.g. 601 West 160 Realty Corp. v Henry, 189 Misc 2d 352 [App Term, 2d & 11th Jud Dists 2001], affg 183 Misc 2d 666 [Civ Ct, Kings County 2000]). We cannot evaluate the claim without a fully developed record.

Accordingly, under the circumstances presented herein, the matter is remanded to the [*3]court below for a new trial.
Decision Date: February 3, 2006