Appeal from a final judgment of the Justice Court of the Town of Wappinger, Dutchess County (Carl S. Wolfson, J.), entered December 19, 2011. The final judgment awarded landlord possession and the principal sum of $860 in a nonpayment summary proceeding.

ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the Justice Court for a trial before a different judge.

Landlord commenced this nonpayment summary proceeding seeking monthly rent of $1,659 for the months of August 2010 to August 2011, half of the rent for September 2011, and the full rent for October 2011. In a prior nonpayment proceeding, in which landlord had alleged that tenants had not paid rent for May, June and July 2010, the Justice Court had ordered tenants to pay landlord half of the rent owed for July 2010. The court had also stayed the execution of the warrant for 15 days at the close of that proceeding, and conditioned the stay upon tenants' payment of half of the rent for September 2011. It is undisputed that tenants paid the full sum required by the court in the prior proceeding. Contrary to tenants' argument on appeal—that the instant proceeding is merely a continuation of the prior proceeding—the instant proceeding is an entirely separate proceeding which seeks to recover unpaid rent which had not yet accrued at the time the prior proceeding had been commenced. Tenants do not claim to have paid any rent for August 2010 through August 2011, but they do claim that the rent due for September and October 2011 was offered and rejected.

After reviewing written submissions from landlord and tenants, the Justice Court made a summary determination (see CPLR 409 [b]) and awarded landlord possession and the principal sum of $860.

Tenants' argument that the Justice Court lacked subject matter jurisdiction to hear this proceeding is without merit. Pursuant to RPAPL 701 (1), a special proceeding to recover real property may be maintained in a Justice Court (see also UJCA 204). Pursuant to RPAPL 741 (5), the relief sought may include a judgment for rent due and/or for the fair use and occupancy of the premises. UJCA 204 states that the Justice Court shall have the jurisdiction to render judgment [*2]for rent due "without regard to amount" in a summary proceeding.

Tenants also argue that they should have been given the opportunity to prove a retaliatory-eviction defense. However, retaliatory eviction is not a defense to a nonpayment proceeding (Real Property Law § 223-b; see CASSM Realty Corp. v Cohen, 38 Misc 3d 136[A], 2013 NY Slip Op 50144[U] [App Term, 1st Dept 2013]; 601 W. 160 Realty Corp. v Henry, 189 Misc 2d 352 [App Term, 2d & 11th Jud Dists 2001]). Furthermore, while tenants argue that they made a good faith tender of rent, an offer to pay a sum less than the rent that is owed is not considered a lawful tender of rent (see Tobias Corp. v Jones, 236 AD2d 602 [1997]). To the extent tenants argue that the proceeding should have been dismissed because landlord terminated the tenancy by serving a notice to quit, tenants failed to make a motion to dismiss the proceeding on that ground. Indeed, tenants made no allegations in the Justice Court as to when they were served with a notice to quit or arguments as to the implications of the service of such a notice.

However, tenants alleged, in their answer, that there was a rent overcharge. In view of this assertion, it was error for the court to award landlord a final judgment without taking sworn testimony at a trial (see RPAPL 745 [1]; Homewood Gardens Estates, LLC v Kirby, 36 Misc 3d 147[A], 2012 NY Slip Op 51633[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Oakwood Terrace Hous. Corp. v Monk, 35 Misc 3d 149[A], 2012 NY Slip Op 51111[U] [App Term, 9th & 10th Jud Dists 2012]).

In view of the foregoing, the final judgment is reversed and the matter is remitted to the Justice Court for a trial before a different judge.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: December 17, 2013